218 Mass. 5 | Mass. | 1914
The plaintiff had begun to do work upon three houses which Hoffman and Potick (hereinafter called the builders) were erecting in Chelsea; and for this work the builders by a written contract had promised to pay the plaintiff the sum of $5,150. The defendants had taken from the builders a construction'mortgage upon the property for more than $13,000, which sum they were to advance to the builders in instalments as the work progressed. When only a small part of his work had been done, the plaintiff became suspicious of the financial responsibility of the builders, and refused to go on unless they would give him a written order upon the defendants to pay him for his work out of the advances to be made by the defendants on the mortgage. The builders gave him such an order, and he presented it to the defendant Canner for acceptance. Canner refused to accept the order, but in substance, according to the testimony of the plaintiff, which must have been followed by the jury, told the plaintiff to “go ahead with the job,” and he would pay him the money; that the plaintiff should have nothing
The payments made afterwards from time to time by Canner to the plaintiff, in part performance of his oral promise, have no bearing upon this question.
As Canner’s promise will not support any action, we need not consider whether the other defendant in any event could have been held thereon.
The case appears to have been fully tried. It comes within the terms of St. 1909, c. 236. The defendants’ exceptions must be sustained and judgment must be entered in their favor..
So ordered.