Swartzman v. Babcock

Loriktg, J. The plaintiffs in this case, who were painters, had undertaken to do the work of painting involved in the construction of certain houses which were being erected by one Jacob Luff. The defendant had agreed to advance money to Luff under a construction mortgage and had accepted orders from Luff for the payment of certain sums to the plaintiffs, payable at the completion payment and the thirty-third day after completion payment of some or all of the houses. It is stated in the report that “ about a week before the twelfth of February, 1912, the plaintiffs called at the office of the defendant to receive the balance due them on the first order, which was then overdue, and that the defendant told them that if they would wait another week and would in the meantime complete the double house, so called, thereby completing their entire work, they would receive their money.” Thereafter the plaintiffs, relying upon this promise, did complete their entire work and brought this action to recover from the defendant, first, on the ground that the money had become due under the defendant’s acceptance of Luff’s orders; and second, on the ground that there was an independent promise by the defendant to pay them the amount due for work in painting the houses in question. There were six requests by the defendant for rulings which were, in effect, that the plaintiffs could not recover on either of the counts of his declaration. These requests were refused by the Chief Justice. The jury found a verdict for the plaintiffs and the case comes up on report. The only questions before us are those covered by the defendant’s exceptions to the refusal of the presiding judge to give the rulings asked for. We are of opinion that no error was committed by the Chief Justice in refusing to give these rulings. So far as the second count is concerned, it is plain that although Luff had not been discharged from his contract the promise of the defendant to pay the plaintiffs for their work if they would complete it was a good independent promise, founded on a valid consideration within the doctrine of Abbott v. Doane, 163 [338] Mass. 433, and Paul v. Wilbur, 189 Mass. 48. See also in this connection Vanuxem v. Burr, 151 Mass. 386. Indeed the defendant himself testified that after he foreclose^ his mortgages upon the houses he had paid out substantially $1,000 to complete them. If this testimony was believed it shows what was the situation under which he made his independent promise to the plaintiffs. On the other hand there was evidence that all the work which Luff was to do on the premises was performed by Luff, except the construction of a granolithic walk, and one of the plaintiffs testified “that there was to be no granolithic walk by reason of a subsequent arrangement between Luff and the defendant.” We are of opinion that where an order is accepted to be paid when the contractor “shall earn his completion payment” on the building in question, the owner cannot set up in defense that the building was not fully completed if the only reason .that the building was not fully completed was that he and the owner had agreed to dispense with the construction of a part of the building which was to have been constructed. The holder of the order in such a case is not in the position of the contractor. He does not have to show that the full contract price was earned. What he has to show is that the contractor earned his completion payment. When by reason of a subsequent agreement between the owner and the contractor the last payment is earned by a partial completion of the building to be constructed, the completion payment is earned within the meaning of this acceptance. Otherwise a subcontractor who had completed his work relying on the acceptance would be done out of his right to payment from the owner, not by fault of the contractor, but by the voluntary act of the owner. . It follows that judgment must be entered on the verdict; and it is So ordered.