238 Mass. 142 | Mass. | 1921
The defendants, who were engaged in the plumbing business, entered into a contract with the city of Lowell for alterations in the Bartlett school house in that city. The contract provided, among other things, for the installation of certain sheet metal, and the defendants made a subcontract with the Bay State Sheet Metal Works covering that portion of the work. There was evidence that the subcontractor placed an order with the plaintiff for a hundred and thirty bundles of sheet metal; that the plaintiff, owing to lack of financial responsibility of the subcontractor, refused to accept the order; that thereafter the plaintiff’s salesman saw one of jthe defendants with reference to guaranteeing the account, who asked him what form of guaranty the plaintiff wished and to bring it to him, and that thereafter a paper was submitted by the plaintiff which the defendants declined to sign; that later the defendants gave to the plaintiff’s salesman a written instrument containing a guaranty of only one half of. the amount of the materials to be furnished; that the salesman told one of the defendants that “the plaintiff could not do business on that basis but the only way they could do business was for the full amount of the bill because of the lack of financial responsibility of the Bay State Sheet Metal Works;” that at a later conversation with the same defendant the salesman said: “Why not bill the goods to you?” and that this defendant replied: “Yes, that would be all right;” that this defendant told the plaintiff’s salesman to ship the material to Carroll Brothers, in three separate shipments; that this order was
As the evidence so excluded was of the same general character and was offered for the same purpose, it may be summarized as follows: (a) the total amount which the defendants paid to the Bay State Sheet Metal Works for work performed and material furnished on the building; (b) that the portion of the full amount which would be due to the metal works by the defendants was paid by them to the metal works; (c) the portion of the work required under the contract between the defendants and the metal works which was completed by the latter; and (d) six checks drawn by them payable to the order of the metal works. The foregoing evidence was offered, as stated to the judge by the defendants’ counsel, “to substantiate the defendants’ theory of the case, that their contract was with the Bay State Sheet Metal Works and not with the E. P. Sanderson Company and that in accordance with their contract they paid the Bay State Sheet Metal Works.” The sole issue between the parties at the trial was whether the defendants were liable to pay for the material furnished by the plaintiff.
If the defendants paid the metal works it would not be evidence that they did not order the material from the plaintiff; nor would the other evidence offered and excluded be material upon the question whether they had, agreed to pay for the materials furnished by the plaintiff. The testimony excluded all related to questions which arose between the defendants and the metal works, after the alleged agreement between the plaintiff and the defendants was made. The defendants’ contention that the evidence was admissible as tending to show that they had paid the metal works and therefore it was improbable that they had' made a contract with the plaintiff for furnishing the material,
Exceptions overruled.