Lynch v. Culhane

• Citation: 237 Mass. 172,129 N.E. 717
• Parties: LYNCH v. CULHANE.
• Decision Date: 07 January 1921
• Court: United States State Supreme Judicial Court of Massachusetts

237 Mass. 172

129 N.E. 717

LYNCH

v.CULHANE.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1921.

Exceptions from Superior Court, Suffolk County; J. F. Quinn, Judge.

Action by Patrick G. Lynch against Margaret E. Culhane. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

John M. Maloney and H. Huestis Newton, both of Boston, for plaintiff.

Everett W. Crawford and William H. Nelson, both of Boston, for defendant.

PIERCE, J.

This is an action to recover on the first count a certain installment of money which the defendant agreed under a written building contract to pay the plaintiff ‘when the building was finished on the outside and all inspected for lathing.’ Under a ‘third count’ the plaintiff sought to recover under a separate special contract an agreed sum of money for work performed in substitution of and in addition to the work called for under the principal contract. Under a ‘fifth count’ the plaintiff sought to recover damages by him sustained by reason of the unreasonable determination of the principal contract by the defendant after the partial performance of the contract by the plaintiff. Under a ‘sixth count’ in quantum meruit the plaintiff sought to recover the value of the work, labor and material performed and furnished by him under the principal contract at a time when he was interrupted in and deprived of an opportunity to fulfill that contract. The jury brought in a general verdict for the plaintiff, not specifying the count on which the finding was made. The exceptions of the defendant relate to the judge's charge.

[1] Relative to the ‘fifth count’ the judge instructed the jury in part as follows:

‘The plaintiff says that the contract was unjustifiablyterminated, and the burden is on him to show it, and if he satisfies you by a fair preponderance of the evidence that it was unjustifiably terminated, he is entitled to recover. What? He is entitled to recover what it cost him, or what his loss was, in other words. You will determine how much he expended in the construction of this work, what he put into it and the cost of what he put into it, what money he was out of pocket on account of this work, and also you may consider, although I don't believe it is contended for here, but it is an element of damage also, the profits that he would have made on this contract if he was allowed to complete it; but there is no evidence of any profits here, so you need not consider it.’

The defendant excepted to this portion of the charge and now contends that the true measure of damages is not the amount actually expended by the plaintiff in the construction of the work, but is the fair value of that work, and that the jury should have been so instructed. No error appears in the charge. In the absence of evidence that the actual expenditures and outlays were extravagant and unnecessary for the purpose of carrying out the contract, they are presumed to have been reasonably made and incurred by the injured party. United States v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168;United States v. United States Fidelity & Guaranty Co., 236 U. S. 512, 525, 35 Sup. Ct. 298, 59 L. Ed. 696;Cederburg v. Robison, 100 Cal. 93, 34 Pac. 625;Olds v. Mapes-Reeve Construction Co., 177 Mass. 41, 58 N. E. 478.

At the trial the plaintiff disclaimed and renounced every right to profits which would have resulted from the contract had he been permitted to perform it. The right to recover for work necessarily done or expense reasonably incurred is distinct.

[2] The defendant excepted to that portion of the charge which dealt with the question of bad faith, the language referred to being as follows:

‘I spoke to you a moment ago about bad faith. If a man intentionally departs from a contract or does it in bad faith, he can't recover, although the other side may be benefited, you may say, by getting the structure; but there may be had faith and intentional departure in some parts of the work and not in all, so in those cases you may determine whether there was bad faith which went to the essence of the building itself, which affected it finally in its value, or whether...