Quin v. Bay State Distilling Co.

Knowlton, J. The exceptions in this case are all to the refusal of the judge to make certain rulings requested by the defendant, and to his finding for the plaintiff. Most of these requests are founded upon an assumption that certain facts are proved in the case. If there was any evidence which would warrant a different finding of the facts, it must be assumed that they were so found. The auditor’s report in favor of the plaintiff is enough to warrant the finding of the judge and his refusal to give the rulings requested, unless the findings in the report or the other facts stated are necessarily inconsistent with the refusal and the result. In one part of the report the contract on which the action is founded is stated as follows: “ This modification left the contract in substance and legal effect that the plaintiff, under the directions of Mr. Sibley and an architect whom the defendant had employed (Mr. Breden), should go ahead and make such repairs and erections as they should order at cost price, and that he, the plaintiff, should have a commission upon the expenditures for his services. This commission was left indefinite, and never agreed upon in terms, except that the plaintiff, after several conversations with Mr. Sibley, told him that he, the plaintiff, thought that ten per cent upon the expenditures would be a fair compensation. To this Mr. Sibley neither assented nor dissented, and thereafter the plaintiff proceeded with his work with no other or further understanding as to compensation, and it is upon such a contract between the parties that this case was finally presented to me.” In another part of the report he says: “ I find that this contract was to make such repairs and erect such buildings as the defendant or its agents, duly authorized, [291] should instruct the plaintiff to prepare and erect; that he should employ labor and furnish the materials at cost, and that this means that he should charge no profit thereon, and that he should receive some suitable sum for superintendence of this work.” We understand that this was an arrangement to furnish labor and materials and superintend work in the erection and repair of buildings so long as both parties should see fit to continue the arrangement, and that the plaintiff was at no time under a contract to build a particular building, and that the defendant was at no time bound by contract to pfermit him to complete a particular building. The plaintiff had been for a long time continuously in the service of the defendant’s predecessor in business, and his arrangement with the defendant apparently was for a continuous service. So far as there was a contract at all, it ran into the future for an indefinite period, applying not to any particular buildings, but to such buildings as the plaintiff might be directed to work upon. It cannot be held to have bound the parties to continue their relations forever. It was, therefore, terminable by either of them at pleasure. The plaintiff, having elected to terminate it, could immediately maintain an action for that which was due him, and the judge rightly refused to rule that the action was prematurely brought. There was no such express contract as would prevent the plaintiff, after electing to terminate the arrangement, from maintaining an action on an account annexed, and the defendant’s request, founded on the form of the declaration, was rightly refused. Morse v. Potter, 4 Gray, 292. Charman v. Henshaw, 15 Gray, 293. Morse v. Sherman, 106 Mass. 430, 432. Lovell v. Earle, 127 Mass. 546. Under this agreement the plaintiff was entitled to recover as well for merchandise which the plaintiff bought and furnished, but had not paid for, as for that which he had paid for. The defendant’s contention that the plaintiff cannot recover for his services because he failed to render a true account is disposed of by the finding of the auditor that the plaintiff was not bound by his contract to do anything more than he did. There is nothing in the case to take it out of the ordinary rule that, where the debt was not payable at an earlier time, [292] interest upon the amount found due is to be allowed from the date of the writ. Dodge v. Perkins, 9 Pick. 368, 388. Foote v. Blanchard, 6 Allen, 221. Exceptions overruled.