Bailey v. Marden

• Decision Date: 27 November 1906
• Citation: 79 N.E. 257,193 Mass. 277
• Parties: BAILEY v. MARDEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 277

79 N.E. 257

BAILEY v. MARDEN.

Supreme Judicial Court of Massachusetts, Essex.

November 27, 1906

COUNSEL

Geo Mitchell, Jr., for plaintiff.

Robt. T. Metcalf, for defendant.

OPINION

RUGG J.

This is an action of contract brought by the plaintiff to recover compensation for hauling wood for the defendant. The declaration is upon an account annexed. The plaintiff contended that the defendant made a verbal contract, under which the plaintiff was to haul for the defendant some wood from the lot where it was cut to a coal yard, for which the defendant was to pay the plaintiff $1 per cord. The plaintiff hauled all the wood which the defendant had cut and ready for him in September 1905, and was paid for it. There being no more wood ready at the time he went to another job, returning to work upon the defendant's lot in November of the same year. The defendant refused to pay anything for this work until all the wood upon the lot had been hauled away, hence this suit. In the superior court, where the case was heard without a jury the justice found as a matter of fact that the agreement was that the plaintiff should haul all the wood at the price of one dollar a cord, the defendant to cut and have it ready for him; that the agreement made no provision for deferment of payment until the wood was all hauled, and that the plaintiff performed his part of the contract as far as he could, and that there was breach of the contract on the part of the defendant.

The bill of exceptions does not purport to disclose all of the evidence, but the testimony of the defendant abundantly justifies the findings made by the justice who heard the cause and the verdict rendered by him. The prayers presented by the defendant were all immaterial, in view of the testimony of the defendant and the facts found. Even if the contract as originally made were entire, to haul all the wood upon the lot, yet it was broken by the defendant without fault on the part of the plaintiff, and under these circumstances he is entitled to recover on a quantum meruit the full value of the work done by him. The defendant cannot be permitted to set up a contract which he himself has avoided as a bar to paying the plaintiff his fair compensation. Fitzgerald v. Allen, 128 Mass. 232; De Montague v. Bacharach, 187 Mass. 128, 72 N.E 938. But even if the facts were not so clearly against the defendant, we could not attempt to pass upon...