Allen v. Burns

• Decision Date: 24 February 1909
• Citation: 201 Mass. 74,87 N.E. 194
• Parties: ALLEN et al. v. BURNS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 74

87 N.E. 194

ALLEN et al. v. BURNS.

Supreme Judicial Court of Massachusetts, Suffolk.

February 24, 1909

COUNSEL

C. F. Perkins and E. L. Briggs, for plaintiffs.

F. E Shurtleff, for defendant.

OPINION

KNOWLTON C.J.

The only question in this case is one of pleading. The first count is upon an account annexed, the first item of which is 'House remodeled and redecorated as agreed $4,728.25.' Then follow 39 items for additional labor and materials in connection with the work referred to in the contract. The second count is upon a special contract in writing, a copy of which is annexed, and it is averred that the plaintiffs in all respects kept and performed all the covenants and agreements, express and implied, in said contract by them to be kept and performed, and that there remains unpaid the plaintiffs under said contract the sum of $1,728.25, etc. The plaintiffs offered the auditor's report and rested. The defendant offered evidence tending to show that the plaintiffs had not performed the contract. The plaintiffs in rebuttal offered evidence tending to show an acceptance of the work and materials as a substantial performance of the contract. The principal finding of the auditor bearing upon the matter in dispute was as follows: 'I find on the evidence that she voluntarily accepted and received the benefits of the plaintiff's part performance, with full knowledge that the contract had not been strictly fulfilled.' The defendant requested the court to rule 'that the report of the auditor was not evidence of acceptance of the performance of the contract by the defendant.' This request was refused and the defendant excepted. By the terms of the contract the balance of the contract price was payable 'upon completion of the work.' The defendant requested the court to rule 'that a strict performance of the contract was a condition precedent to the payment to the plaintiffs of the final payment set forth in the contract.' Also 'that if the contract was not fully performed by the plaintiffs, they could not recover on the second count of the plaintiffs' declaration.' The court declined so to rule, but ruled that if there had been a substantial performance by the plaintiffs of the contract in suit, they were entitled to recover, under either count of the declaration, the contract price, less payments made by the defendant on account, and certain deductions for deviations from the contract, and found for the plaintiffs in the sum of $1,580.25, with interest from June 1, 1906, as the balance due on the special contract, and found for the plaintiffs in a certain sum, on items 2 to 40 in the account annexed to the first count of the declaration.

The ruling shows that the judge made deductions from the contract price for deviations from the contract, and we infer from the record, although perhaps this is not certain, that the amount of the these deductions was $148.50. He found that there had been a substantial performance of the contract, and that the defendant had accepted the work and materials furnished by the plaintiffs as a substantial...