Beverly Hospital v. Early
| Decision Date | 25 September 1935 |
| Parties | BEVERLY HOSPITAL v. EARLY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Essex County; Brogna, Judge.
Action of contract by Beverly Hospital against Willoughby P. Early. Verdict for plaintiff for $408.43, and defendant brings exceptions.
Exceptions sustained.
C. S Sears, of Salem, for plaintiff.
J. A Murphy, of Salem, for defendant.
This is an action of contract on an account annexed to recover for board, room and attendance furnished the defendant's late wife, for which he undertook in writing to pay. The plaintiff is a charitable corporation, and is none the less such because it charges those who are able to pay. McDonald v. Massachusetts General Hospital, 120 Mass. 432, 435,21 Am.Rep. 529; Thornton v. Franklin Square House, 200 Mass. 465, 467, 86 N.E. 909,22 L.R.A. (N. S.) 486; New England Sanitarium v. Inhabitants of Stoneham, 205 Mass. 335, 342, 91 N.E. 385; Little v. City of Newburyport, 210 Mass. 414, 418, 96 N.E. 1032, Ann.Cas. 1912D, 425; Newton Centre Woman's Club, Inc., v. City of Newton, 258 Mass. 326, 154 N.E. 846; Springfield Young Men's Christian Association v. Board of Assessors of City of Springfield, 284 Mass. 1, 187 N.E. 104; Powers v. Massachusetts Homoeopathic Hospital (C. C. A.) 109 F. 294, 65 L.R.A. 372. The answer, so far as material, was a general denial and an allegation that the negligence of servants of the plaintiff caused the patient's leg to be burned, so that it had to be amputated, wherefore ‘ the character and quality of the services rendered by the plaintiff were not such as to justify the charge * * * but * * * were worthless.’ The defendant conceded that the amount charged would have been reasonable had there been no negligence. The judge, upon the opening for the defendant, ruled ‘ that as a matter of law this defense was not open on the pleadings and on the law,’ and ordered a verdict for the plaintiff in the full amount of the declaration. The defendant excepted.
The plaintiff contends that the defense outlined was by way of recoupment; that recoupment is available only where a cross action would lie (Graham v. Middleby, 213 Mass. 437, 443, 100 N.E. 750,43 L.R.A. (N. S.) 977, Ann.Cas. 1914A, 384; McCarthy v. Henderson, 138 Mass. 310, 313; Bucholz v. Green Bros. Co. [Mass.] 195 N.E. 318); and that no cross action could have been brought in this case by the defendant or his wife against a charitable corporation like the plaintiff, either in tort (Kidd v. Massachusetts Homeopathic Hospital, 237 Mass. 500, 130 N.E. 55, and cases cited), or in contract upon an undertaking to use reasonable skill and care (Roosen v. Peter Bent Brigham Hospital, 253 Mass. 66, 75, 126 N.E. 392, 14 A.L.R. 563). The main ground of the immunity of such a charity is that the charitable funds ought not to be diverted to the payment of damages. Foley v. Wesson Memorial Hospital, 246 Mass. 363, 141 N.E. 113; Glaser v. Congregation Kehillath Israel, 263 Mass. 435, 161 N.E. 619; Reavey v. Guild of St. Agnes, 284 Mass. 300, 187 N.E. 557. Compare McKay v. Morgan Memorial Co-operative Industries & Stores, Inc., 272 Mass. 121, 124, 172 N.E. 68. We need not consider in this case whether this immunity extends to furnishing inferior and negligent service in violation of a contract, when set up merely in recoupment (see Moses v. Stevens, 2 Pick. 332, 336, 337; Moulton v. Trask, 9 Metc. 577, 579; Austin v. Foster, 9 Pick. 341; 59 C. J. 319, § 476), for we are of opinion that what the defendant sought in this case was not recoupment at all.
The declaration is upon an account annexed in which the only debit item, apart from interest, is for ‘ room, board and attendance, etc., from April 7, 1933, to September 1, 1933, $410.70.’ The bill of exceptions discloses no contract for a fixed price.‘ A plaintiff who declares on a count on an account annexed has, in legal intendment, made with respect to the item stated in the account annexed all the allegations contained in all the common counts.’ Massachusetts Mutual Life Ins. Co. v. Green, 185 Mass. 306, 310, 70 N.E. 202, 203; Noble v. Segal, 214 Mass. 159, 100 N.E. 1112. Of these ‘ common counts' in indebitatus assumpsit under the common law system of pleading (Stearns v. Washburn, 7 Gray, 187; Morse v. Sherman, 106 Mass. 430), those applicable to the present case are the counts for board and lodging (Krupp v. Craig, 247 Mass. 273, 142 N.E. 69), and for quantum meruit for work and labor (Lowe v. Pimental, 115 Mass. 44; Lovell v. Earle, 127 Mass. 546). Under either, the issue is, What is the service worth? The quality as well as the quantity of the service is open as a part of the plaintiff's case. No claim for recoupment is necessary to enable the defendant to contend that, because of the plaintiff's lack of skill or care, the service was worth little or nothing.
In Basten v. Butter, 7 East, 479, 483, an action of assumpsit on the common counts for labor and materials in constructing a building, the defendant was permitted to show that because of the negligent and unskilful work of the plaintiff the building collapsed. Lord Ellenborough said ‘ Where a plaintiff comes into Court upon a quantum meruit, he must come prepared to show that the work done was worth so much, and therefore there can be no injustice to him in suffering this defence to be entered into, even without notice.’ See, also, Sagar v. H. Ridehalgh & Son, Ltd., [1931] 1 Ch. 310, 323 et seq. In Caverly v. McOwen, 123 Mass. 574, an action on an account annexed by an attorney at law for services and disbursements, evidence that the work was unskilfully or negligently done was held admissible under a general denial, for the plaintiff was entitled only to what his services were worth and had the burden of proving their value. See, also, Dodge v. Tileston, 12 Pick. 328; Bridges v. Paige, 13 Cal. 640; Gaw v. Wolcott, 10 Pa. 43. Again, a builder who, in an honest attempt to perform a contract, has performed it substantially though not sufficiently to enable him to recover upon it, may recover upon a quantum meruit for the benefit conferred. Allen v. Burns, 201 Mass. 74, 87 N.E. 194; Bowen v. Kimbell, 203 Mass. 364, 369, et seq., 89 N.E. 542,133 Am.St.Rep. 302; Searls v....
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