Dowling v. McKenney
| Decision Date | 28 June 1878 |
| Citation | 124 Mass. 478 |
| Parties | William P. Dowling v. Catharine McKenney |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued November 7, 1877
Essex. Contract. The declaration contained three counts. The first was to recover $ 200, on an account annexed, for "furnishing materials for, and labor and work in making a monument." The second was as follows: "And the plaintiff says that he made an agreement with the defendant to furnish materials and construct for her a monument for the sum of two hundred dollars; that he furnished materials and made sad monument for the defendant, and tendered the same to the defendant; and that she owes him therefor the sum of two hundred dollars." The third was on an account annexed and contained the following items: Answer, a general denial.
At the trial in the Superior Court, before Dewey, J., the plaintiff testified that he was a manufacturer of monuments and gravestones, keeping on hand stock and partly finished monuments, to be finished to order; that the defendant came to his shop and said she would like to get a monument; that he showed her several monuments partially manufactured, among them the one in question, the price of which he told her was $ 250, when finished with base, cap and plinth, and polished that she said she had some land, and he said perhaps they might trade with the piece of land; that if he could get a piece of land at a reasonable price he might trade with her; that if she would sell the land at the same price for which she had sold another piece, he would trade with her for the monument; that they went on the land and looked at the lots, for one of which she asked $ 435; that he told her he would throw off $ 50 on the monument, calling it $ 200 complete, if she would throw $ 35 off on the lot, and would give her $ 100 cash, and $ 100 later, and the monument completed with the inscription, for the lot of land; and that to this proposition she agreed, and the lot was selected and agreed on.
There was also evidence that subsequently the plaintiff purchased a plinth, and one of his workmen worked three or four days, fitting and polishing the monument, putting on the cap and mouldings, and one third of the inscription, which the defendant had given him to be put on the monument, at the time of the original contract, was put on, taking three days' work; that the defendant then notified the plaintiff that she would not take the monument, as she had been advised it was too large, and refused thereafter to take it; that subsequently the plaintiff completed the monument and inscription, and offered to deliver it to her, and pay her $ 100 cash and give her his note for $ 100, secured by mortgage on the land, and demanded a deed of the land; that she refused to accept the monument, money and note, and refused to deliver him a deed of the land.
Upon this evidence, the plaintiff contended that he had the right to recover the sum of $ 200, for furnishing materials and completing the monument, and that, if he could not recover for the materials or the monument, he had a right to recover for his labor in completing the monument. The defendant contended that the Gen. Sts. c. 105, § 1, cl. 4, and § 5, were a bar to the action. The judge, by consent of parties, before verdict, reported the case for the determination of this court. If, on this evidence, the action could not be maintained, judgment was to be entered for the defendant; otherwise, the case to stand for trial.
Case to stand for trial.
J. C Sanborn, for the plaintiff.
W. L Thompson, for ...
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Associates Discount Corp. v. C.E. Fay Co.
...is commonly construed as including exchange or barter (Commonwealth v. Clark, 14 Gray 367, 372;Howard v. Harris, 8 Allen 297;Dowling v. McKenney, 124 Mass. 478;Gallus v. Elmer, 193 Mass. 106, 109, 78 N.E. 772,8 Ann.Cas. 1067;Cobb, Bates & Yerxa Co. v. Hills, 208 Mass. 270, 94 N.E. 265) and ......
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Henrikson v. Henrikson
...void and the defendant receiving no benefit, there could be no implied promise to respond for a benefit bestowed upon another. Dowling v. McKenney, 124 Mass. 478; Keener on Quasi Contracts, pp. 279-282; Browne on Statute of Frauds (5th Ed.) § 118a; Dunphy v. Ryan, 116 U. S. 491, 6 Sup. Ct. ......
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Bendix v. Ross
...the liability is not measured by the benefit received. Parker v. Tainter, 123 Mass. 185, belongs to this class. However, in Dowling v. McKenney, 124 Mass. 478, the question was squarely met by the court, and it was held that, where one advances money to or performs services for another base......
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Cullen v. Carey
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