Fall River Oil Heating Co. v. Gildard

• Decision Date: 07 January 1929
• Citation: 265 Mass. 513,164 N.E. 382
• Parties: FALL RIVER OIL HEATING CO., Inc., v. GILDARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 513

164 N.E. 382

FALL RIVER OIL HEATING CO., Inc.,

v.GILDARD.

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 7, 1929.

Exceptions from Superior Court, Bristol County; Joseph Walsh, Judge.

Action by the Fall River Oil Heating Company, Inc., against James H. Gildard. Verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.

Arthur S. Phillips, of Fall River, for plaintiff.

Harold S. R. Buffinton and Robert A. Bogle, both of Fall River, for defendant.

WAIT, J.

This is an action by the payee against the maker of two promissory notes, which were delivered in connection with a contract for the installation of an oil heating system by the plaintiff in premises of the defendant. The written contract contained no agreement that the system should be satisfactory. It provided that when the oil tank was installed a note for $500 should be given in part payment, and that a note for the balance due on the contract should be given when the work was completed. The note for $500 sued upon in the first count was delivered before the tank was installed, and there was evidence which would sustain a finding that, in order to obtain it at that time, the plaintiff agreed that the system should be satisfactory. The note declared upon in the second count was delivered when the work was finished. The defendant's answer set up that his signature was obtained through misrepresentations of the plaintiff; that there was no consideration for the notes; that the consideration had failed; that the notes were to be paid only if the defendant was satisfied with the contract; that he was not satisfied and so refused payment.

The jury found for the defendant. The plaintiff's only exceptions are to the refusal of the judge to direct a verdict for the plaintiff on both counts, and to so much of the charge as permitted the jury to find that there was a supplementary agreement which could defeat the action on the notes, and instructed them that there was evidence of modification or addition to the contract based upon any question of the work being satisfactory to the plaintiff.

We find no merit in the exceptions. No objection was made to the introduction of the evidence was have summarized. It could be given such probative force as it possessed. Gethins v. Breeyear, 252 Mass 326, 327, 147 N. E. 876. There can be no doubt that the written contract could be modified after its execution by oral agreement based upon consideration. Cummings...