Thibert v. Morello

• Decision Date: 02 December 1931
• Parties: THIBERT v. MORELLO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 286

178 N.E. 516

THIBERT

v.MORELLO.

Supreme Judicial Court of Massachusetts, Hampden.

Dec. 2, 1931.

Appeal from District Court of Springfield; R. S. Spooner, Special Justice.

Action by Paul D. Thibert against Joseph Morello. From an order of the Appellate Division ordering report dismissed, defendant appeals.

Affirmed.

C. E. Poirier, of Springfield, for appellant.

W. G. McKechnie, of Springfield, E. M. McCarthy, of New York City, and M. J. Donovan, of Springfield, for appellee.

PIERCE, J.

The report discloses that the declaration contains one count as follows: ‘Now comes the plaintiff in the above entitled action and says that on the fifth day of August 1929, the plaintiff and the defendant entered into an agreement, a copy of which is hereto annexed and expressly made a part hereof, whereby the defendant agreed to pay the plaintiff for whatever lumber the said plaintiff or the P. D. Thibert Lumber Co., Ins., * * * furnished * * * upon a job on premises known as lot No. 3 on Homestead Drive, in said Springfield. The plaintiff has carried out the terms of said agreement and has furnished lumber upon said job and the work on said job has been discontinued for more than one week and the defendant has refused to pay the plaintiff the amount now owed the plaintiff upon said job and there is now due and owing to the plaintiff upon said job the sum of $498.54. Wherefore the defendant owes the plaintiff the sum of $498.54.’ The answer is a general denial.

At the trial there was evidence tending to show that the parties entered into the contract declared on by the plaintiff; that the balance due the plaintiff for materials furnished in accordance with the contract was $498.54; that in addition to the contract declared on, the plaintiff held as security for the lumber furnished or to be furnished a second mortgage covering the property referred to in the contract in the sum of $1,000; that this mortgage and a note of $1,000 were executed and delivered on July 2, 1929, by Armand Viens, owner of the property; that up to August 5, 1929, the date of the execution of the contractdeclared on, the plaintiff had delivered to said Viens material to the amount of $551.26; that subsequently and before foreclosure was commenced, the plaintiff furnished to said Viens additional materials in the amount of $947.28. The report further shows that work was suspended within the meaning of the contract for a greater period than one week, work having terminated in the early part of October, 1929; that on October 18, 1929, for breach of the terms of said mortgage, the plaintiff commenced foreclosure proceedings and on December 19, 1929, sold the property under the power of sale. At this sale a bid of $1,000 was made by the defendant, who instructed the auctioneer to charge it to his wife, Lilia Morello, and to put the property in her name on his book. No payment or tender of payment by the defendant for material furnished to said Viens under the contract declared on was made ‘immediately after the end of the suspension of work upon said building for said period of one week’ or at any time thereafter, and ‘no request was made by defendant for an assignment of said mortgage by Thibert according to the terms of said agreement.’

At the close of the trial the defendant filed the following requests for rulings: ‘1. That under any construction of said agreement the defendant's liability thereunder was limited to One Thousand ($1,000.00) Dollars. 2. That the payment of One Thousand Two Hundred ($1,200.00) Dollars made...