323 Mass. 526 | Mass. | 1948
The plaintiff, in this action of contract sought to recover for alleged overcharges arising out of the repair of his boat by the defendant. The jury returned a verdict for the plaintiff. The principal question for decision
These facts could have been found. In the early part of February, 1945, the plaintiff, a resident of Worcester, purchased a fifty-two foot motor cabin cruiser through a yacht broker in Florida. At the time the boat was purchased it was in the shipyard of the defendant, a Florida corporation, which was engaged in the business of building and repairing boats in Miami, Florida. Prior to its purchase by the plaintiff the boat had been owned by one Young. At about the time the boat was purchased the plaintiff asked one Lowery, who was superintendent of the defendant’s yard and was “familiar with the boat,” how much it would cost to “put the boat in shape.” Lowery told him that it would cost between $5,000 and $6,000, “a low of $5,000 and a top of $6,000,” and that he would furnish specifications of what the repairs were to include. Within a few days thereafter Lowery furnished specifications containing ninety-four items. After receiving the specifications the plaintiff told Lowery to go ahead with the work, and the price was finally fixed “at a low of $5,000 and a top of $6,000.” Work was started on the boat on February 21, 1945. On March 20 the plaintiff received a bill from the defendant for $2,595.64 for work done on the boat between February 21 and March 9. The plaintiff told Lowery that he thought the amount was .very high for the number of days work involved. Lowery replied, “Weíl, you don’t need to worry about that. You’ve got a top price, anyway, ... we render these bills and they have to be paid when they are presented.” Later a bill covering the period from March 10 to March 19 for $3,009.06 was sent to the plaintiff. The plaintiff told Lowery at that time that he thought the bill was all out of proportion to the amount of work done on the boat and that the amount agreed upon was nearly used up by the
A considerable amount of evidence was introduced by the plaintiff to show that the repairs were not done in a workmanlike manner. But this evidence need not be recited for reasons that will presently appear.
1. The defendant’s motion for a directed verdict was rightly denied. Although the transactions here involved
The defendant argues that the plaintiff was not entitled to recover back the sums paid by him in excess of the alleged contract price because these payments were voluntary. The defendant invokes the familiar rule “that money voluntarily paid under a claim of right, with full knowledge of the facts on the part of the one making the payment, cannot be recovered back unless there is fraud or concealment or compulsion by the party enforcing the claim.” Carey v. Fitzpatrick, 301 Mass. 525, 527, and cases cited. Hinckley v. Barnstable, 311 Mass. 600, 604. This is true although no obligation to make the payment existed. Rosenfeld v. Boston Mutual Life Ins. Co. 222 Mass. 284, 289. And a mere" denial of liability accompanied by a statement that the payment was being made under coercion does not render the payment involuntary. Forbes v. Appleton, 5 Cush. 115, 118. We think, however, that it could not be said as matter of law that the payments here were voluntary. The jury could have found that the bills were greatly in excess of the contract price; that on several occasions when the bills were rendered the plaintiff objected to the charges; that he was told that the work would not go forward and that he could not take his boat out of the yard unless he paid the bills; and that no other shipyard would take the boat while the defendant had a claim against it. If the jury found these facts, they would have been warranted in finding that the payments made by the plaintiff were not voluntary but were made for the purpose of releasing his property from a threatened detention that was illegal.
It is true, as the defendant has argued, that the plaintiff did not protest all of the payments. That is true of the fourth, seventh and eighth bills. Nor does it appear that the defendant, when these bills were paid, told the plaintiff that he could not have his boat until they were paid. But each of the parties had stated his position on at least three occasions, and in view of that the plaintiff might very well have concluded that nothing would be gained by a further protest. ín the circumstances the jury could have found that the plaintiff never abandoned his position or acquiesced in the defendant’s demands, and that he made all of the payments in the well founded belief that if he did not do so the defendant would not complete the work or surrender the boat. See Maskell v. Horner, [1915] 3 K. B. 106, 121. Contrary to the defendant’s contention, the jury were not obliged to find that the parties entered into a new contract in which the larger sum was agreed to.
The contention that the judge erred in submitting the case to the jury because there was a fatal variance between the declaration and the proof is without merit. It is true that the declaration sought to recover back overcharges under an implied contract, whereas the evidence showed an express contract. But the defendant’s motion for a directed verdict was not specifically based on the pleadings. It is settled that an exception to the denial of such a motion will not be sustained if the evidence was sufficient in any legal form of declaring to justify a finding for the plaintiff in any amount. Weiner v. D. A. Schulte, Inc. 275 Mass. 379, 385. Beit. Bros. Inc. v. Irving Tanning Co. 315. Mass. 561, 563. Tinkham v. Wind, 319 Mass. 158, 160.
Since the plaintiff was entitled to go to the jury on the
2. As stated above, the defendant here was a plaintiff in a companion case which was tried with the case at bar, and obtained a verdict against the present plaintiff.
This exception must be overruled. “The power of the court to order a set-off of judgments does not rest upon statutes; it rests upon the common law and is to be exercised in accordance with general principles of justice and equity.” Goldman v. Noxon Chemical Products Co. 274 Mass. 526, 529, and cases cited. Ordinarily the exercise of this power is at the discretion of the court. Chipman v. Fowle, 130 Mass. 352, 354. Old Colony Trust Co. v. National Non-Theatrical Motion Picture Bureau, Inc. 274 Mass. 377, 380. But the setting off of a judgment obtained in a cross action by a resident defendant against a judgment recovered against him by a nonresident plaintiff is expressly provided for in G. L. (Ter. Ed.) c. 227, § 2, and is an absolute right. Franks v. Edinberg, 185 Mass. 49. General Laws (Ter. Ed.) c. 235, § 27, provides a method
Under G. L. (Ter. Ed.) c. 221, § 50, before it was revised by St. 1945, c. 397, § 1, an attorney “who is lawfully possessed of an execution, or who has prosecuted a suit to final judgment in favor of his client, shall have a lien thereon for the amount of his fees and disbursements in the cause.” This lien, however, was construed as extending only to such counsel fees as were included in taxable costs. Blake v. Corcoran, 211 Mass. 406, 407. Check v. Kaplan, 280 Mass. 170, 174. By the amendment of 1945, which is applicable here, the attorney is given a much broader lien. He now has a lien for his “reasonable fees and expenses.”
It follows that the defendant’s exceptions must be overruled.
So ordered.
We assume that the defendant would have a lien on the boat as security for the payment of the sum agreed upon for the repairs. See Flesher v. Handler, 303 Mass. 482, 483. But it could not hold the property to compel the payment of a larger sum.
That ease was brought to recover compensation for repairs to the plaintiff’s boat which were made subsequent to those involved in the present case.
That part of § 27 prescribing the manner in which executions may be set off reads as follows: “Executions between the same parties may, if required by either party, be set off one against the other. In such case, the debtor in an execution which has been delivered to an officer to be served shall deliver his execution to the same officer, whether directed to him or to another, and the officer shall apply the smaller execution, so far as it will extend, to the satisfaction of the larger execution, and the balance due on the larger execution may be collected and paid by him as if there had been no set-off.”
Statute 1945, c. 397, § 1, now provides in part that “From the authorized commencement of an action, counterclaim or other proceeding in any court, or appearance in any proceeding before any state or federal department, board or commission, the attorney who appears for a client in such proceeding shall have a lien for his reasonable fees and expenses upon his client’s cause of action, counterclaim or claim, upon the judgment, decree or other order in his client’s favor entered or made in such proceeding, and upon the proceeds derived therefrom” (emphasis supplied). The statute also provides that “Upon request of the client or of the attorney, the court in which the proceeding is pending . . . may determine and enforce the lien.”