Vickery v. Ritchie, 207 Mass. 318

Vickery v. Ritchie

207 Mass. 318 | Mass. | 1911

Knowltoh, C. J.

This case was before this court after its first trial, and was reported in 202 Mass. 247, where the principal facts are stated. It is now presented on the defendant’s exceptions, which, as he says in his brief, relate to four subjects, namely: “First, the right of the plaintiff to recover; second, the right of the defendant to a credit of $3,000, the amount of certain notes given in payment and subsequently paid; third, the right of the defendant to a credit of $1,500 for certain other notes given in payment and subsequently dishonored; fourth, the right of the defendant to a credit of $1,600 as liquidated damages for the delay from March 6, 1903, to August 13, 1903, at $10 a day.”

The right of the plaintiff to recover upon the facts found by the jury was established, upon full consideration, by our former decision, and the defendant’s requests for instructions on this part of the case were rightly refused.

The various requests upon the second and third subjects to which the defendant’s argument was addressed were rightly refused.

The evidence to which the requests related was that the architect fraudulently delivered to the owner and contractor what purported to be duplicate contracts signed by the parties, for the construction of a bath house, in which the price to be paid was stated as $33,721 in the copy delivered to the contractor, and as $23,200 in the copy delivered to the owner, and afterwards volunteered to give the contractor certain notes, signed by himself, *322on account of sums apparently due under the contract held by him which stated the larger price, at a time when there was nothing due according to the terms of the contract held by the owner which stated the smaller price. All the dealings of the parties pertaining to the contract, from first to last, until the building was substantially completed, were through the architect. The plaintiff and the defendant never met. When these notes were received by the plaintiff from the architect the plaintiff supposed that they were to be applied in part payment of the price stated in his contract. Upon all the evidence the architect had no authority to make these payments or any of them for the defendant, and the defendant had no knowledge of them until long afterwards, when they had been applied by direction of the architect upon a contract with one Richardson, in his charge, on which the plaintiff was entitled to receive payments. There is no evidence that the defendant ever ratified the giving of these notes by the architect for the purposes for which they were given; but on the contrary, he repudiated all liability, at any time, for any sum beyond the amounts paid by himself. Upon this evidence the judge correctly stated the law, that the receipt of a note upon a debt is prima facie to be deemed a payment; but he left it to the jury to say whether the ordinary presumption in the case of a payment by one who ought to pay was overcome by the facts in this ease, where the notes were given by a volunteer, whose acts in this particular could have no effect upon the rights of the defendant, and were received by one who supposed they were to be applied on an express contract to pay him $33,721, when in fact there was no such contract. Under these circumstances, the jury were not bound to find that the notes were to be taken as a payment upon the account upon a quantum, meruit for labor and materials. The judge could not give the last part of the second request, that there was “no evidence tending to control this presumption in the present case.” The third and fourth requests were not applicable to the case of a payment by a volunteer without knowledge of the defendant, and to a second application made before the debtor had any knowledge of the payment.

The fifth, eighth and ninth requests on this subject called for an erroneous statement of the law. The judge told the jury that *323they had a “ right to consider what were the further relations between Dwight and the plaintiff as to the change of the notes, that is, applying them on another account,” and said he ruled against the defendant on the proposition maintained by him that, “ as long as there was some application of these notes to the payment of his account, they could not afterwards change the application to the Richardson account.” Upon the evidence, this ruling and the submission of these questions to the jury were sufficiently favorable to the defendant.

The next subject to which the defendant’s argument relates arises under the tenth request for a ruling, that “ the defendant is entitled to a credit of at least $1,600 for late completion.” This is founded upon a provision in the supposed contract that the plaintiff should pay $10 per day for all time after the date at which the contract was to be completed until it was in fact completed. This contract never took effect between the parties, and there was no foundation for the defendant’s claim of this credit. The real question was what was the value of the labor and materials furnished by the plaintiff at the time and place when and where they passed to the ownership of the defendant. The instruction to the jury that they should allow to the defendant $10 for each day of unreasonable delay of the plaintiff, if they found that there had been unreasonable delay and no waiver on the part of the defendant, was too favorable to him.

Exceptions overruled.