Corsiglia v. Burnham

Braley, J. An appeal to this court from the Superior Court does not transfer the entire case, but only such questions of law as are apparent upon the record. Fay v. Upton, 153 Mass. 6. It was open to the trustee, if he had desired, to have asked that court to dismiss the plaintiff’s appeal because it was prematurely entered. But this course not having been taken, the question of jurisdiction cannot be raised for the first time at the argument before us. Callender, McAuslan & Troup Co. v. Flint, 187 Mass. 104. Commonwealth v. Bond, 188 Mass. 91. The only question presented for our decision is whether the order discharging the trustee should be reversed. It may be considered as practically conceded by the trustee, in his answers to the interrogatories, that at the date of the service of the writ upon him the defendant, who was the contractor, in good faith had substantially finished the house. If nothing further appeared, while in an action upon the contract a failure to comply with the trifling details of putting in a few shelves and replacing some broken window glass would be sufficient to prevent a recovery, yet the contractor would be entitled to maintain an action under a count upon an account annexed for labor and materials furnished, by which the value of the real estate had been enhanced. The amount to be recovered in such an action would be limited to the contract price, after deducting previous payments and any expenditure that might be required to supply the omitted details. It would follow that the trustee similarly could be charged in the present action with a corresponding sum. Allen v. Mayers, 184 Mass. 486. Carpenter v. Gray, 12 R. I. 307. A further examination, however, discloses a different legal [349] situation. No claim of substantial performance was made by the defendant. But the contrary appears. Before the trustee was summoned, the defendant not only expressly admitted a failure to put in the shelves and replace the glass, but electing to stand upon the contract, promised to supply both. Moreover, he acceded to the contention of the owner and agreed with him that until the house had been fully completed according to the specifications, the balance of the contract price was not payable. In the absence of a fraudulent purpose to defeat creditors, which does not appear, these statements being under oath and responsive to the interrogatories, are made conclusive upon the plaintiff by R. L. c. 189, § 15. Phillips v. Meagher, 166 Mass. 152. Neally v. Ambrose, 21 Pick. 185, 187. Accordingly the money which it is sought to hold, not being due until the entire contract had been performed, the trustee is not chargeable as a debtor of the defendant. Robinson v. Hall, 3 Met. 301. Gleason v. Gage, 2 Allen, 410. Wood v. Buxton, 108 Mass. 102. Peterson v. Loring, 135 Mass. 397. Allen v. Mayers, 184 Mass. 486. Order discharging trustee affirmed.