240 Mass. 371 | Mass. | 1922
This action is to recover for labor performed and materials furnished by the plaintiffs upon a building owned by the defendant. The case was tried in the Superior Court, the only evidence being the report of the auditor. He found that the plaintiff Lonnqvist told the defendant it would cost about $600 to paint and paper and otherwise renovate the interior of the defendant’s building, but “did not promise to do it for that sum as an exact price.” It was the contention of the plaintiffs that they were to be paid for the materials used and $1 an
In the Superior Court a finding for the plaintiffs in the sum of $12.60 was made, this being the sum owed them for materials furnished the defendant, after they had ceased to labor on the building, and interest; and the case was reported to this court on the stipulation that “If, as a matter of law on the pleadings and evidence, the plaintiffs are entitled to recover for labor and materials found by the auditor in the sum of $477.29 together with interest from the date of the writ, amounting in the aggregate to $501.15 then judgment is to be entered for the plaintiffs for that amount.”
The auditor’s report shows that the minds of the parties never met; and there was no agreement between them that the plaintiffs should perform all the work and furnish all the materials for the sum of $600, as contended by the defendant, or that the entire work should be done for $1 per hour for the labor supplied and the price of materials; and no agreement was made as to the terms of payment. It is elementary in the law of contracts that the assent to the terms of an agreement must be mutual, and an obligation does not arise where the terms of the contract are not agreed to. Speirs v. Union Drop Forge Co., 180 Mass. 87, 93, 94. Montgomery Ward & Co. v. Johnson, 209 Mass. 89. The plaintiffs entered upon the work for which they supposed they were to be paid a certain price and the defendant supposed they were to be paid a different price; and no contract existed binding the plaintiffs to complete the work at either price. The understanding or unexpressed intention of one party is not binding on the
The plaintiffs have performed labor and furnished materials on the defendant’s building. They were both in error in supposing they had made a binding contract; but the work having been performed at the defendant’s request, the law implies a contract on his part to pay the plaintiffs. It follows from this that as matter of law the plaintiffs are entitled to recover for their labor and materials to the amount found by the auditor.
As there was no express contract between the parties we need not consider the effect of the subsequent changes in the character of the work performed and the materials furnished at the defendant’s request. Sherman v. Buffinton, 228 Mass. 139, 140.
The plaintiffs’ declaration is in one count, on an account annexed for the value of the materials and labor. Under this declaration the plaintiffs could recover for the work done and materials furnished. Lowe v. Pimental, 115 Mass. 44, 48.
According to the terms of the report judgment is to be entered for the plaintiffs in the sum of $501.15.
So ordered.