Woods v. Murphy

177 Mass. 369 | Mass. | 1901

Hammond J.

This is an action upon an instrument under seal executed by both of the defendants. The instrument assigns a certain claim to the plaintiff, and then concludes as follows: “This assignment is given to secure said Woods for labor and material performed and furnished on account of house on Corey St. Everett now owned by said Mary A. Murphy and we jointly and severally agree to pay to said Woods all dues on account thereof.” The writing is dated September 14, 1897.

The only question is whether it bound the defendants to pay for labor and materials performed and furnished after its date. In order properly to consider the question, it is necessary to get an accurate conception of the circumstances surrounding the transaction.

It appeared at the trial that on or about August 12,1897, the plaintiff, and the defendant, James J. Murphy, being then the owner of a house in Everett, entered into a written agreement, by the terms of which the plaintiff was to do certain plumbing work upon the house for $395, of which $100 was to be paid when the “job is rough in and tested,” $150 when the work had progressed to another stage, and the balance twenty days after the completion of the job. The plaintiff prosecuted the job, according to the agreement, to the point where he was entitled to the first payment. The defendant James, who, after the signing of the contract conveyed the house to his wife Mary, the other defendant, neglected to make to the plaintiff the first payment, and the plaintiff stopped work. All this was before September 14, 1897. Some payments must have been made to the plaintiff, or some credits given to the defendant James, for it appears that, at the time of the execution of the sealed instrument of September 14, 1897, there remained unpaid, of the first $100 called for, only the sum of $70.19. The plaintiff, however, had not resumed work.

Under these circumstances the instrument was executed. The wife was the owner of the house, the plaintiff, who had made the original plumbing contract with the husband, had not been paid according to the contract, and the house was no longer a part of the assets of the husband. Only about one fourth of the work had been done, and $70.19 of that was unpaid, and all parties knew this. It may fairly be inferred, that it was for the interest of the wife that the plaintiff should complete his contract, and that the plaintiff was willing to complete it if he could get his pay.

The instrument contained an assignment of “ sums of money now due and becoming due,” to secure the plaintiff “for labor and material performed and furnished on account of ” the house, and a promise to pay the plaintiff “ all dues on account thereof.” The fair grammatical construction of the sentence is, that the word- “ thereof ” refers to the house and not simply to the labor and materials, but whether it refers to the one or the other, the word “ dues ” is used, and, inasmuch as there was only one sum then due, it is fair under the circumstances to infer that the word embraces sums to become due. Taking the whole language of the instrument, and interpreting it in the light of the circumstances, we think that the most reasonable construction is, that its object was to secure to the plaintiff the payment, not only of the small sum due him on September 14, 1897, but also of any sum which should become due him in the performance of the original contract, rather than to say that its sole purpose was to secure only the sum due at its date.

Nor is the use of the past participle in the phrase “performed and furnished” conclusive against this construction. The tense may well be considered as referring to labor and materials performed and furnished at the time when the future payment may become due, and so as indicating simply the order of the events in the future, rather than as referring to the date of the agreement. We think that the court committed no error in construing the instrument.

Exceptions overruled.