Thibert v. Morello

277 Mass. 286 | Mass. | 1931

Pierce, J.

The report discloses that the declaration contains one count as follows: “Now comes the plaintiff in the above entitled action and says that on the fifth day of August, 1929, the plaintiff and the defendant entered into an agreement, a copy of which is hereto annexed and expressly made a part hereof, whereby the defendant agreed to pay the plaintiff for whatever lumber the said plaintiff or the P. D. Thibert Lumber Company, Inc., . . . furnished . . . upon a job on premises known as lot No. 3 on Homestead Drive, in said Springfield. The plaintiff has carried out the terms of said agreement and has furnished lumber upon said job and the work on said job has been discontinued for more than one week and the defendant has refused to pay the plaintiff the amount now owed the plaintiff upon said job and there is now due and owing to the plaintiff upon said job the sum of $498.54. Wherefore the defendant owes the plaintiff the sum of $498.54.” The answer is a general denial.

At the trial there was evidence tending to show that the parties entered into the contract declared on by the plaintiff; that the balance due the plaintiff for materials furnished in accordance with the contract was $498.54; that in addition to the contract declared on, the plaintiff held as security for the lumber xurnished or to be furnished a second mortgage covering the property referred to in the contract in the sum of $1,000; that this mortgage and a note of $1,000 were executed and delivered on July 2, 1929, by Armand Viens, owner of the property; that up to August 5, 1929, the date of the execution of the contract declared on, the plaintiff had delivered to said Viens material to the amount of $551.26; that subsequently and before foreclosure was commenced, the plaintiff furnished to said Viens additional materials in the amount of $947.28. The report further shows that work was suspended within the meaning of the contract for a greater period than one week, work having terminated in the early part of October, 1929; that on October 18, 1929, for breach of the terms of said mortgage, the plaintiff commenced foreclosure proceedings and on December 19, 1929, sold the property under the power of sale. At this sale a bid of $1,000 was made by the defendant, who instructed the auctioneer to charge it to his wife, Lilia Morello, and to put the property in her name on his book. No payment or tender of payment by the defendant for material furnished to said Viens under the contract declared on was made “immediately after the end of the suspension of work upon said building for said period of one week” or at any time thereafter, and “no request was made by defendant for an assignment of said mortgage by Thibert according to the terms of said agreement.”

At the close of the trial the defendant filed the following requests for rulings: “1. That under any construction of said agreement the defendant’s liability thereunder was limited to $1,000. 2. That the payment of $1,200 made to the plaintiff at the foreclosure sale was a payment made by the defendant. 3. That the payment of $1,200 by the defendant to the plaintiff on November 9, 1929, at the foreclosure sale of said premises was a full performance of the defendant’s obligation under said agreement. 4. That if the defendant is obligated to the plaintiff in the sum- of $1,000, the defendant, according to the agreement, is entitled to an assignment of the plaintiff’s mortgage, and the plaintiff, by foreclosing his said mortgage, has rendered himself unable to perform his part of the agreement. 5. That if the defendant is in default of said agreement, the plaintiff’s damages are nominal. 6. That the defendant is not hable for the materials furnished up to August 5, 1929, in the agreed amount of $551.26. 7. That the plaintiff cannot recover because on the admission of the plaintiff and on all the evidence it must be found that the lumber was delivered to 30 Homestead Drive and there is no evidence to show that 30 Homestead Drive and Lot No. 3 Homestead Drive mentioned in the agreement relied upon, are the same property.” The judge granted requests numbered 1 and 6, severally denied those numbered 2, 3, 4, 5 and 7, and found that the defendant paid the plaintiff nothing pursuant to the agreement declared on, but bid in the property known as “Lot No. 3” in said agreement at a foreclosure sale as agent for a third person. The defendant claiming to be aggrieved by the refusal to grant the rulings requested, the judge reported the case for determination by the Appellate Division. The Appellate Division found there was no prejudicial error on the part of the trial judge and ordered the entry on the docket of said court, “Report Dismissed.” The case comes before this court on the appeal of the defendant from the “final decision of the Appellate Division.”

At the hearing in this court “the defendant relies solely upon the lower court’s refusal to grant request number 5 and waives the lower court’s refusal to grant requests number 2, 3, 4 and 7.” The only question argued by the defendant in support of his requests for ruling number 5 is whether or not, as matter of law, the provision of the agreement “that in the event that the work of building said house shall for any reason be suspended for the period of one week, the said Joseph Morello will pay the said Paul D. Thibert for whatever lumber the said Paul D. Thibert or P. D. Thibert Lumber Company has furnished upon said job to date,” means date of agreement or date of suspension of work. We think the words “has furnished upon said job to date” are unambiguous and import an undertaking to pay for lumber which had been furnished at the date of the agreement as well as after the date of the agreement. The contract being so interpreted, it follows on the facts reported that the defendant had incurred a liability of $1,000 on a principal indebtedness of $1,498.54 where the creditor had other security to the extent of $1,000 in the form of a mortgage to secure the lumber advanced or to be advanced on the premises, known as “Lot No. 3,” belonging to Armand Viens. In the circumstances here disclosed the creditor after foreclosure was within his right in applying the proceeds first to the payment of the part of the debt of Viens not secured by the agreement of the defendant, and secondly to the discharge of the defendant’s obligation. Wilcox v. Fairhaven Bank, 7 Allen, 270. Exchange Trust Co. v. Hitchcock, 249 Mass. 547.

The entry must be, order “report dismissed” affirmed.

So ordered.