Ledoux v. Lariviere

• Decision Date: 23 November 1927
• Citation: 261 Mass. 242,158 N.E. 779
• Parties: LEDOUX et al. v. LARIVIERE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 242

158 N.E. 779

LEDOUX et al.

v.LARIVIERE.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 23, 1927.

Appeal from Superior Court, Worcester County; Brown, Judge.

Suit in equity by Lodia Ledoux and another against Henry Lariviere for an accounting.From a final decree for plaintiff, defendant appeals.Affirmed.

E. A. Brodeur, of Worcester, for appellant.

J. J. Moynihan, of Worcester, for appellees.

CARROLL, J.

The allegations of the bill in this suit in equity are that the defendant, the owner of a certain tract of land, agreed with the plaintiffs to build a house thereon according to certain plans and specifications, and when the house was finished the land was to be conveyed to the plaintiffs; that the defendant began the construction of the house and the plaintiffs paid him $1,650 on the purchase price; that the plaintiffs‘moved into the premises, they being at that time substantially completed * * * [but they] were not completed in accordance with the terms of the contract,’ and the plaintiffs so notified the defendant, who promised to ‘see to it and rectify the premises'; that the plaintiffs were to do certain specified work, and in the fulfillment of this promise they installed the heater, cemented the cellar, did all the outside work, supplied shades and balcony dryers at an expense of $1,188.39 and paid out $49.80 for gas piping.It is further alleged that the plaintiffs are ready and willing to comply with the contract; that the defendant refuses to complete the contract and convey the premises to the plaintiffs; that, without the consent of the plaintiffs, he has placed a mortgage for $7,000 on the premises and insists on retaining the sums expended and advanced to him, amounting to $2,888.19.The plaintiffs prayed for an accounting.The case was referred to a master to hear the parties and report his findings, ‘with such facts and questions of law as either party may request.'

The master found that the agreement was entered into in effect as alleged in the plaintiffs' bill; that the plaintiffs were to pay $11,000, to accept a deed when the house was completed; that the house was not constructed in a good and workmanlike manner ‘or with good materials'; that the plaintiffs took possessionof the premises before the house was completed with the consent of the defendant; that the defendant has never tendered a deed, and that the occupation of the premises did not amount to a waiver.It was further found that the plaintiffs were ready, able and willing to purchase the property, provided the house was completed according to contract.

An interlocutory decree was entered confirming the report and denying the defendant's motion to recommit.The defendant excepted to this order of the court, but filed no bill of exceptions.He did not appeal from the interlocutory decree.A final decree was entered, directing the defendant to pay ‘the plaintiff the sum of $2,256.33 with costs.’The defendant appealed...