Hennessey v. Preston

• Decision Date: 24 October 1914
• Parties: HENNESSEY v. PRESTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

219 Mass. 61

106 N.E. 570

HENNESSEY v. PRESTON et al.

Supreme Judicial Court of Massachusetts, Hampden.

October 24, 1914

Oct 24, 1914.

COUNSEL

G. A Bacon and Thos. Kirkland, both of Springfield, for appellants.

Ellis, Brewster & Ellis, of Springfield, for appellee.

OPINION

De COURCY, J.

The controversy in this suit arises out of a building contract. The plaintiff contractor seeks to recover a balance alleged to be due thereon, and also for extra labor and materials furnished. In order to reach and apply in payment of the debt certain money in the hands of George S. Preston, the plaintiff brought this bill in equity under the provisions of R. L. c. 159, § 3.

Whether the bill is considered under clause 7 or under clause 8 of section 3, so far as the plaintiff seeks to establish an indebtedness on the part of Juliet E. Preston (hereinafter called the defendant), the proceeding is in essence an action at law, and his right to recover must be determined by the same rules that would apply in a common law proceeding. Stockbridge v. Mixer, 215 Mass. 415, 102 N.E. 646. As the bill proceeds solely on the basis of a special contract alleged to have been performed by the plaintiff and broken by the defendant, there can be no recovery unless the facts show that he performed it completely. Under the averments of his bill he cannot recover merely by showing that the contract was performed substantially, or that there was a waiver of complete performance by the defendant. Allen v. Burns, 201 Mass. 74, 87 N.E. 194. The issue of a variance was insisted upon by the defendant in her answer, in the hearing before the master, and in her exceptions to the master's report.

The only finding of the master that sustains' the plaintiff's averment of complete performance is contained in the following paragraph:

'In the early part of the hearing, the defendants made a general objection that any testimony tending to show a variance from the full performance of the contract or any excuse or waiver of nonperformance of the contract was inadmissible under the pleadings. I find that there was no evidence introduced or offered which tended to show a variance from the full performance of the contract or any excuse or waiver of nonperformance except where the parties agreed between themselves that the contract should be modified.'

It seems apparent from the record as a whole that this is an inference from other findings stated in his report and not an independent finding on evidence directed to this special question. In any event it is entirely inconsistent with some of the other findings made by the master. For instance, in no less than fourteen particulars he finds that the plaintiff failed to comply with the requirements of his contract, and he allows the defendant therefor in the way of recoupment the sum of $338.44. Under these circumstances we do not see how the finding of performance of the contract can stand; and the defendant's twelfth exception must be sustained. French v. Hall, 198 Mass. 147, 84 N.E. 438, 16 L. R. A. (N. S.) 205; Quimby v. Tapley, 202 Mass. 601, 89 N.E. 167.

It does not follow that the bill must be dismissed. In view of the fact that the merits of the controversy have been tried at length, the plaintiff, who has not been paid in full for the work done by him, may desire to apply to the superior court for leave to amend his bill by alleging an attempt in good faith to perform his contract, and a substantial performance of it, or a waiver. Bowen v. Kimball, 203 Mass. 364 89 N.E. 542, 133 Am. St. Rep. 302. He cannot, however, recover on the record as it stands merely by amending his bill. There is no unqualified finding in the master's report that the plaintiff substantially performed his contract, and there is no express finding on the question of his good faith. Both of these must be established. See Burke v. Coyne, 188...