290 Mass. 464 | Mass. | 1935
This is an action of contract which comes before this court on a report of the Superior Court of the defendant’s exceptions.
On June 14, 1916, the plaintiff, while in the employ of The American Powder Mills, was severely burned “under such circumstances that there was liability on behalf of The American Powder Mills for the injury.” While in the hospital he was interviewed by the president and the superintendent of The American Powder Mills, who at this time made an oral contract with him whereby, in substance, the plaintiff agreed not to sue said Mills on account of the injuries received, in consideration of the Mills’ agreement to give him “six days’ pay a week plus all expenses that may incur through this accident, for life whether you are able to work or not, and in case of your death if you don’t come out of this we guarantee to take care of your family.” The plaintiff testified as follows: After the talk with the president and the superintendent "I did not expect that I could sit still and not work the rest of my life. I expected as a result of that talk that I was to work when able at The American Powder Mills at all times when they had anything for me to do except when I had to be away for treatments on account of the injury. In other words, when they said they were going to give me six days’ pay a week I understood that unless I had to go to the hospital or see a doctor on account of my hands or they were in such pain that I couldn’t work I was going to perform the work which they had for me to do at the plant, as far as I was able.”
The plaintiff makes no claim of any express novation, but contends that the evidence would warrant the jury in finding a series of implied novations between the plaintiff and the companies, including the defendant, which succeeded The American Powder Mills. Applicable to the case at bar the requisites of these novations are (1) that there existed a valid obligation between the plaintiff and The American Powder Mills; (2) that the American Powder Company (the defendant) agreed to assume and perform that contractual obligation; and (3) that the plaintiff knew of the agreement, accepted the arrangement and intended to discharge and extinguish the old obligation to him of The American Powder Mills. Caswell v. Fellows, 110 Mass. 52. Pope & Cottle Co. v. Wheelwright, 240 Mass. 221, 225.
The bills of sale contain no direct evidence of an assump
So ordered.