Fitzgerald v. Allen

• Decision Date: 12 January 1880
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Edward Fitzgerald v. Charles E. Allen & another

128 Mass. 232

Edward Fitzgerald v. Charles E. Allen & another

Supreme Court of Massachusetts

January 12, 1880

Argued November 11, 1879

Suffolk. Contract in three counts. The first count was on a written contract, by the terms of which the plaintiff agreed to lay all the concrete required on "Section A" of the Sudbury River conduit for the sum of seventy-five cents per cubic yard, and to furnish all tools and labor necessary to do the work; the defendants agreed to furnish the materials for the work, which was to be done according to the plans and specifications for "Section A," and to the full satisfaction of the engineers and inspectors and entire acceptance of the Boston Water Board; any work not done to their satisfaction to be taken up and relaid at the expense of the plaintiff; the first full month's estimate to be held by the defendants as security for the faithful performance of the work; and the defendants reserved the right to cancel the contract, if so ordered by the engineer. The second count was on an account annexed for extra work done under the contract. The third count was on a quantum meruit for work done under the contract up to the time when it was cancelled by the defendants.

At the trial in the Superior Court, before Putnam, J., the plaintiff did not claim to recover on the first count.

It appeared in evidence that the defendants had contracted with the city of Boston to build "Section A" of the Sudbury River conduit, and the work covered by the plaintiff's contract was a portion thereof; that by the contract with the city the defendants were bound to build the section to the entire acceptance of the Boston Water Board and to take up and rebuild any part of it, at their own expense, that might be directed by the board at any time before the final acceptance by them, and the city retained fifteen per cent of the contract price to secure performance that the first month's estimate of work done under the plaintiff's contract amounted to $ 192, and this sum had been retained by the defendants under the provisions of the contract until the work should be accepted by the Water Board, which had never yet been done; that the engineer had ordered the discharge of the plaintiff, because he was not satisfied with his work; and that the section had not been completed, and, by the terms of the defendants' contract with the city, it was not to be accepted until the whole of it was completed.

The defendants contended that the action could not be maintained upon the quantum meruit, or not until the whole work was completed and accepted by the Boston Water Board; and that in any case they were entitled to retain the amount of the first month's estimate until the whole work was completed and passed upon by the Water Board.

The judge instructed the jury to find the whole amount due the plaintiff, and deduct therefrom $ 192, the amount due for the first month's work. The jury found, that, after deducting the $ 192, there was due to the plaintiff $ 111.78; they also found, specially, that the value of the work and materials furnished by the plaintiff before his discharge was worth the amount claimed. The plaintiff alleged exceptions to the above ruling.

It was agreed that, if the plaintiff was entitled to recover on the third count, and the ruling of the judge directing the jury to deduct the amount of the...