Favale v. Siegel

• Decision Date: 07 April 1931
• Citation: 175 N.E. 732,275 Mass. 309
• Parties: FAVALE v. SIEGEL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 309

175 N.E. 732

FAVALE

v.SIEGEL.

Supreme Judicial Court of Massachusetts, Middlesex.

April 7, 1931.

Appeal from Superior Court, Middlesex County; Stanley E. Qua, Judge.

Action by Joseph Favale against Abraham Siegel. From an order denying defendant's motion to recommit the report of the auditor and an order granting plaintiff's motion for judgment on the auditor's report in plaintiff's favor, defendant appeals.

Judgment for plaintiff.

L. R. Eyges, of Boston, for appellant.

CROSBY, J.

The parties entered into a written agreement by the terms of which the plaintiff was to construct and install in the defendant's store certain fixtures in accordance with specifications attached to and made a part of the agreement. The agreement provided that the material and workmanship should be first class in every respect and satisfactory to the defendant. The contract price to be paid by the defendant was $2,100. The declaration contains a single count upon an account annexed showing nineteen items. The amended answer is a general denial, payment and the special defence that the plaintiff failed to perform the contract in accordance with its terms, that the materials furnished and the workmanship were not first class in every respect, and that neither was satisfactory to the defendant, by reason whereof the defendant suffered damage to the extent of approximately $1,500. The defendant also filed what is entitled an amended declaration in set-off in which he seeks to set off said alleged claim of $1,500. The case was referred to an auditor whose findings of fact were to be final. The evidence is not reported.

The auditor in his report dealt separately with the terms in the account annexed. As to the nineteenth he found that it was a claim for money due under the written contract; that all the other items were claims for extra work performed by the plaintiff due to changes and additions, alleged to have been ordered by the defendant during the progress of the work under the written contract. He further found that immediately after the written contract was entered into the plaintiff began to prepare in his workshop the fixtures required by the specifications and to install them in the defendant's store; that during this time the defendant was often present and suggested changes in the original contract, which need not be described in detail; that while this work was being performed the defendant was present and was told by the plaintiff that the changes would cause additional expense, and the defendant said he would pay for them. During his cross-examination he admitted that all the changes for which an extra charge was made were at his request; he stated that the charges for...