Workman v. Smith

• Decision Date: 30 November 1891
• Citation: 155 Mass. 92,29 N.E. 198
• Parties: WORKMAN et ux. v. SMITH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 92

29 N.E. 198

WORKMAN et ux. v. SMITH et al.

Supreme Judicial Court of Massachusetts, Bristol.

November 30, 1891

COUNSEL

Wm H. Fox, for plaintiffs.

J. & R.C. Brown, for defendants.

OPINION

BARKER J.

The case is reserved for the determination of the full court upon the bill and demurrers, such orders to be made as justice may require. The complainants, William H. and Fanny B. Workman are husband and wife. Their bill alleges, in substance, that the respondent Smith contracted with Mr Workman to build for him a house on land of Mrs. Workman, and another house on his own land, and that both houses have been substantially completed, although some work on each is unfinished, and some of the work is not as good as was called for by the contracts; that Smith, under an oral agreement with Mr. Workman, did extra work on each house, although not to the amount which he claims; that payments on account of the contracts and of the extra work have been made by Mr Workman, some of which were upon one contract, and some upon the other, and some general, without any appropriation; these payments amount to $12,974.93, and are alleged to have been in full of the contracts, and of all extra work; that Smith claims to be entitled to further payment, and has commenced a suit against Mr. Workman therefor, which is now pending, in which Smith charges him with $5,896 and $5,605, the contract prices for the respective houses, and $1,888.23 for extra work and materials, and credits him with $12,290.40 only, and claims to recover the balance, $1,098.83; that Appleton did the mason-work on the house on Mrs. Workman's land under contract with Smith or as his employe, and has received from Smith payments on account of it amounting to $1,800; that Mrs. Workman made no oral or written contract with Appleton, and never in any way made herself liable to pay him for his work; that she was aware of the tenor of the contract between her husband and Smith, and understood and believed that Appleton was doing the mason-work under contract with Smith or as Smith's employe, and not under any contract, express or implied, with herself; that Appleton has sued her for the balance due him for the mason-work, alleging in one count a contract with her to do it for the sum of $2,300, and that he has performed his contract, and also done extra work, and that she owes him $600, and alleging, in a second count, that she owes him $886.13 on an account annexed, crediting her in each count with payments of $1,800; that the two suits were brought by a fraudulent collusion between the respondents, with intent to defraud the complainants, and to compel them to pay twice for the same work, because the respondents know that there is not now enough due Smith to pay the balance due to Appleton. The complainants offer to pay the respondents, or either of them, anything now due from the complainants, or either of them, but insist that such payment shall be a...