Taylor v. Harrington

• Decision Date: 01 December 1922
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: FRED B. TAYLOR & another v. DANIEL J. HARRINGTON.

243 Mass. 210

FRED B. TAYLOR & another v. DANIEL J. HARRINGTON.

Supreme Judicial Court of Massachusetts, Hampden.

December 1, 1922

October 17, 1922.

Present: RUGG, C.

J., BRALEY, PIERCE CARROLL, & JENNEY, JJ.

Frauds, Statute of. Evidence, Books of entry.

At the trial of an action for the purchase price of certain building material the answer set up a defence that the contract sought to be enforced was an agreement to answer for the debt, default or misdoing of another, that it was not in writing and was unenforceable by reason of

G.L.c. 259, Section 1. There was evidence that the materials were for the construction of houses of a building trust, that the "principal party" in the trust was a bankrupt who since his bankruptcy, had been carrying on the business of a builder in the name of his wife, that he was the builder of the houses in question and that the defendant was his superintendent in charge; that, in preliminary negotiations between the plaintiff and the defendant relating to the furnishing of the goods in question, the plaintiff refused to charge the goods to the trust or to the builder and told the defendant that he would charge them to him and would look to him for payment, to which the defendant assented; and that the materials were delivered and used in the construction of the buildings of the trust. Held, that

(1) Further testimony of the plaintiff, in substance that he knew, when the defendant brought to him the list of materials sought and asked him to figure on it, that he was buying it as a representative of the trust, was not inconsistent with his testimony, if believed, that the defendant agreed to pay for the materials after the refusal of the plaintiff to charge them to the trust;

(2) The jury were warranted in finding that the materials were sold and delivered to the defendant upon his personal credit and not to him in his representative capacity, and therefore that the agreement was not one to answer for the debt, default or misdoing of another and G.L.c.

259, Section 1, was not as a matter of law a bar to the action.

In the action above described, the defendant also relied on the defence that, the value of the goods being more than $500, the action was barred by G.L.c. 106, Section 6, contending that there was no memorandum in writing and no part payment or acceptance and receipt of any part of the goods. The evidence warranted a finding that the goods were received and aceepted by the defendant as a performance of the contract when they were delivered at the place designated by the contract and were there used and incorporated in the buildings under the direction and with the assent of the defendant. Held, that G.L.c. 106,

Section 6, was not, as a matter of law, a bar to the action.

At the trial of an action upon an account annexed, the plaintiff testified without objection that the items annexed to the declaration were charged to the defendant, and to no one else, in a day book or journal, a book of original entries, and were then posted to the ledger. The day book and the ledger were offered in evidence and were admitted to show to whom the account was charged. Held, that

(1) It must be assumed that the trial judge found that the entries were made in good faith, in the regular course of business, and before the beginning of the civil proceedings in question;

(2) Under G.L.c. 233, Section 78, the books were admissible in evidence for the purpose for which they were offered.

CONTRACT, with a declaration upon an account annexed for $1,794.65, a balance alleged to be due, with interest, upon the purchase price of certain building materials. Writ dated February 13, 1918.

In the Superior Court, the action was tried before Callahan, J. Material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be entered in his favor. The motion was denied. The jury found for the plaintiffs in the sum of $2,175.73; and the defendant alleged exceptions. The case was submitted on briefs.

H. W. Ely & J.

B. Ely, for the defendant.

O. H. Hughm & W.

G. Brownson, for the plaintiffs.

PIERCE, J. This is an action of contract to recover for building material in value exceeding $500, alleged to have been sold and delivered to the defendant, and also a notarial fee for a protested check. Authorized by the pleadings the defendant contends that, on the plaintiffs' evidence, if an agreement was made between them and the defendant it was an agreement to answer for the debt, default or misdoing of another, and, not being in writing, is unenforceable. R.L.c. 74, Section 1 (now G.L.c. 259, Section 1).

The evidence warranted a finding that the plaintiffs knew the defendant intimately when the alleged contract was made with him in ...