Nichols v. Bucknam

• Decision Date: 08 May 1875
• Citation: 117 Mass. 488
• Parties: John C. Nichols v. Davis P. Bucknam
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 488

John C. Nichols v. Davis P. Bucknam

Supreme Court of Massachusetts

May 8, 1875

Argued November 17, 1874 [Syllabus Material]

Suffolk. Contract. The declaration contained three counts. The first and second counts were for money paid to prevent the enforcement of a mechanic's lien for labor on a block of houses owned by the plaintiff, which money the defendant agreed to pay. The third count was for money had and received. The bill of particulars contained two items, the first being: "To cash paid defendant on his promise to pay workman on plaintiff's building in Somerville which defendant neglected to do, $ 200;" and the second item was for interest.

Trial in the Superior Court, without a jury, before Lord, J., who allowed a bill of exceptions in substance as follows:

On July 21, 1870, Milo Scott entered into a written contract with the plaintiff to furnish the labor and materials and build a block of houses on the land of the plaintiff in Somerville for the sum of $ 5450. The defendant verbally agreed with Scott to furnish material and do the plaster and brick work of the block, and thereafter actually furnished the material and performed the work. In so doing the defendant employed William E. Bucknam, his brother, with other men, to work on the block; and William E. actually worked on said block for the defendant, from August 5, 1870, to October 1870, charging therefor the sum of $ 253.25, and agreeing not to call on the defendant for his pay till Scott had paid him.

In November, 1870, William E. Bucknam commenced proceedings to enforce his lien against said land and block of houses, and obtained a verdict in the Superior Court for the County of Middlesex, on January 15, 1872, for the sum of $ 206.82, as damages, and costs taxed at $ 45.42, though no decree for a sale of the premises was ever entered. The defendant knew of the proceedings to enforce said lien, and was present, and testified in favor of his brother at the trial.

The plaintiff, on March 14, 1872, paid William E. Bucknam the amount of said verdict and costs as above stated, to avoid further proceedings for the enforcement of said lien; and at March term 1872, of said court, William E. gave the plaintiff a writing acknowledging "full satisfaction of the debt and costs of suit, and of judgment and decree therein," and the same was filed in court on March 14, 1872. The plaintiff paid $ 68, as witness and counsel fees in defending said lien suit, and demanded of the defendant, before service of his writ, the sum of $ 382.21, the amount of said verdict costs and expenses, which the defendant refused to pay. The plaintiff had overpaid Scott on his contract to the amount of $ 264, before the commencement of the proceedings to enforce said lien.

The defendant commenced an action against Scott on a running account, embracing twenty-six items, -- the first twenty-four items, being prior in point of time, amounted to $ 221.91 the twenty-fifth item was for said brick work, and amounted to $ 518.00; and the twenty-sixth item was for said plastering work, and amounted to $ 224.00. The total amount of the debits in said account being $ 993.91, and the credits given being $ 545.50. In that action the defendant employed the same attorney, and obtained a verdict against Scott for the sum of $ 436.17, and judgment was entered thereon, February 29, 1872.

On October 29, 1870, Scott gave to the defendant the following order on the plaintiff: "Mr. Nichols: Please pay Mr. D P. Bucknam $ 200 on account of plastering block. Milo Scott." And the defendant, on the morning of that day, presented the same to the plaintiff...