Nevins v. Ward

• Citation: 67 N.E.2d 673,320 Mass. 70
• Parties: NEVINS v. WARD et al.
• Decision Date: 01 July 1946
• Court: United States State Supreme Judicial Court of Massachusetts

320 Mass. 70
67 N.E.2d 673

NEVINS
v.
WARD et al.

Supreme Judicial Court of Massachusetts, Middlesex.

July 1, 1946.

Suit in equity by Francis J. Nevins against Francis E. Ward and another for breach of a building contract and recovery on quantum meruit for labor and materials, including extras, in which defendant filed a counterclaim for breach of contract. Decree for defendants, and plaintiff appeals.

Modified and affirmed as modified.

[67 N.E.2d 673]

Appeal from Superior Court, Middlesex County; Dillon, Judge.

Before FIELD, C. J., and LUMMUS, QUA, RONAN, and SPALDING, JJ.

M. T. Hall, of Boston, for plaintiff.

F. R. Walsh, of Boston, for defendants.

[67 N.E.2d 674]

QUA, Justice.

This suit in equity is in substance the equivalent of an action at law arising out of a written contract, dated April 26, 1940, whereby the plaintiff agreed to build a house in Quincy for the defendant Ward, hereinafter called the defendant, as a price (as modified by subsequent agreement eliminating some of the work) of $11,525. The several claims of the plaintiff against the defendant are the equivalent of counts in an action at law (1) for alleged breach of the contract by the defendant, (2) upon quantum meruit for extras, and (3) upon quantum meruit for work, labor and materials, including not only all that was done and supplied under the contract but the extras as well. Any contention that the proceeding should have been at law instead of in equity has been waived by the defendant. Parkway, Inc. v. United States Fire Ins. Co., 314 Mass. 647, 651, 51 N.E.2d 436. The facts have been found by a master. His report has been confirmed by interlocutory decree from which no appeal has been taken.

The plaintiff began work on April 29 and continued until September 11, when he received a notice from the defendant's attorney asserting that the plaintiff had violated the contract and ordering him to quit the job. A crucial question in the case is whether this action of the defendant in notifying the plaintiff to stop work was a breach of the contract by the defendant, as the plaintiff contends, or a refusal to go on with it which was justified by the previous conduct of the plaintiff, as the defendant contends.

The facts upon which this issue must be decided are these: The contract provided for ‘Progress Payments' of eighty-five per cent of the value, based on contract prices, of labor and material incorporated in the work up to the first and fifteenth of each month, and further provided that prior to the second and to subsequent payments the plaintiff should submit evidence satisfactory to the architect and owner that payall payrolls, material bills, and indebtedness connected with the work performed under the preceding payment had been paid. In general, ‘Progress Payments' were made twice a month, but the plaintiff did not pay all payrolls, material bills, and indebtedness connected with the work perfromed under preceding payments. The defendant waived this requirement as payments came due until about September 1, but not ‘in respect of subsequent progress payments.’ By the time the payment became due for work done up to September 1 the accumulation of unpaid charges amounted to a substantial sum. On August 23, the defendant was summoned as trustee in the amount of $2,000 in an action against the plaintiff by one Spencer for a sum due on other work. The defendant and her attorney began an investigation of the...