300 Mass. 128 | Mass. | 1938
The plaintiff seeks to recover a balance of $250 allegéd to be due upon a written contract dated May 15, 1935, whereby the plaintiff agreed to install tiling in fifty-five bathrooms at “Garrison Hall,” and also $275 for “extra work” upon the same premises. The defendant answered by general denial and in recoupment for alleged improper work. The judge made a general finding for. the plaintiff in the total sum of $375.
There was evidence of the making of the written contract,
The defendant's exceptions are to the refusal of the judge to give the rulings requested by it. Of those argued, the judge could not have given numbers 2, 4, 6 and 7, because these requests ignore the evidence from which the judge could find that the defendant owed the plaintiff for extra work and the evidence that the plaintiff did not authorize the execution of the “memorandum” in his behalf.
Request number 3 asks a ruling that, if the plaintiff did not satisfactorily complete the job in accordance with the written contract, the defendant is entitled to recoup in a sum sufficient to complete the job as it should have been done. This request overlooks the rule that quantum meruit and not recoupment is the means by which, in this Commonwealth, the rights of the parties are adjusted where there has been part but not complete performance of a building contract. Bowen v. Kimbell, 203 Mass. 364, 369-371. Handy v. Bliss, 204 Mass. 513, 517-519. Gillis v. Cobe, 177 Mass. 584, 595. Beverly Hospital v. Early, 292 Mass. 201, 204. Moreover upon a recoupment the burden of proof rests upon the defendant, and if the judge found the “memorandum” unauthorized there was no evidence from which the amount of any recoupment could be ascertained. Bank of United States v. Thomson & Kelly Co. 290 Mass. 224.
We find no error of law in denying the requests.
Exceptions overruled.