Charles I. Hosmer, Inc. v. L. P. Federico & Son
| Decision Date | 03 May 1938 |
| Citation | 199 A. 567 |
| Court | New Hampshire Supreme Court |
| Parties | CHARLES I. HOSMER, Inc., v. L. P. FEDERICO & SON. L. P. FEDERICO & SON v. CHARLES I. HOSMER, Inc. |
Exceptions from Superior Court, Cheshire County; Burque, Judge.
Cross-actions of assumpsit between Charles I. Hosmer, Incorporated, and L. P. Federico & Son. Verdicts for the first-named party, and the other party brings exceptions.
Judgments on the verdicts.
Cross-actions of assumpsit. Trial by the court with verdicts for the plaintiff in the first case and for the defendant in the second. At the close of the evidence the defendant in the first case, hereinafter called Federico, moved that the action "be dismissed" on the ground that the plaintiff, hereinafter called Hosmer, had "failed to show the legality of the contract between himself and Federico." This motion was denied and Federico excepted. After the verdicts had been rendered, Federico moved that they be set aside "as against the weight of the evidence submitted." This motion was denied and Federico excepted. A bill of exceptions was allowed by Burque, J.
The facts are stated in the opinion.
Howard B. Lane, of Keene, and Dana B. Jefferson and William Herbits, both of Boston, Mass., for Hosmer. John R. Goodnow, of Keene, and Elias Field, of Boston, Mass., for Federico.
In June, 1934, Hosmer entered into a written contract with the town of Hinsdale, whereby he undertook to construct certain sewers in that town. This contract contained a provision which prohibited the subletting of any part of the work without the written consent of the town. Thereafter, on or about October 2, 1934, Federico and Hosmer entered into a written contract, hereinafter called the subcontract, whereby Federico undertook to do certain portions of the work called for by Hosmer's contract with the town. This subcontract was not approved in writing by the town, and this fact furnishes the basis for Federico's contention that Hosmer had failed to show the legality of the agreement between them.
After Federico had entered upon the performance of the subcontract, he encountered unexpected difficulties, and on December 18, 1934, he wrote a letter to Hosmer, suggesting, in substance, that the contract between them be abandoned and that Hosmer hire his (Federico's) equipment and such of his men as might be needed for the completion of the work. Within a day or two after this letter was received by Hosmer, the parties had a conversation in regard to their future relations, and upon the terms of this conversation their reciprocal rights depend. Whether it took place by telephone or in Hinsdale was a disputed issue and the parties disagreed as to what arrangements finally resulted.
Federico testified that after the difficulties of the work had...
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...79 (D.Me. 1967); McLaughlin v. New England Tel. & Tel. Co., 345 Mass. 555, 188 N.E.2d 552, 558 (1963); Charles I. Hosmer, Inc. v. L. P. Federico & Son, 89 N.H. 378, 199 A. 567, 568 (1938); McClendon v. Dean, 45 N.M. 496, 117 P.2d 250, 254 (1941). See also Portuguese-American Bank v. Welles,......
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