Hennessey v. Preston

De Courcy, J. The controversy in this suit arises out of a building contract. The plaintiff contractor seeks to recover a balance alleged to be due thereon, and also for extra labor and materials furnished. In order to reach and apply in payment of the debt certain money in the hands of George S. Preston, the plaintiff brought this bill in equity under the provisions of R L. c. 159, § 3.* Whether the bill is considered under clause 7 or under clause 8 of § 3, so far as the plaintiff seeks to establish an indebtedness on the part of Juliet E. Preston (hereinafter called the defendant), the proceeding is in essence an action at law, and his right to recover must be determined by the same rules that would apply in a common law proceeding. Stockbridge v. Mixer, 215 Mass. 415. As the bill proceeds solely on the basis of a special contract alleged to have been performed by the plaintiff and broken by the defendant, there can be no recovery unless the facts show that he performed it completely. Under the averments of his bill he cannot recover merely by showing that the contract was performed substantially, or that there was a waiver of complete performance by the defendant. Allen v. Burns, 201 Mass. 74. The issue of a variance was insisted upon by the defendant in her answer, in the hearing before the master, and in her exceptions to the master’s report. The only finding of the master that sustains the plaintiff’s averment of complete performance is contained in the following paragraph: “In the early part of the hearing, the defendants made a general objection that any testimony tending to show a variance from the full performance of the contract or any excuse or waiver of non-performance of the contract was inadmissible [63] under the pleadings. I find that there was no evidence introduced or offered which tended to show a variance from the full performance of the contract or any excuse or waiver of non-performance except where the parties agreed between themselves that the contract should be modified.” It seems apparent from the record as a whole that this is an inference from other findings stated in his report and not an independent finding on evidence directed to this special question. In any event it is entirely inconsistent with some of the other findings made by the master. For instance, in no less than fourteen particulars he finds that the plaintiff failed to comply with the requirements of his contract, and he allows the defendant therefor in the way of recoupment the sum of $338.44. Under these circumstances we do not see how the finding of performance of the contract can stand; and the defendant’s twelfth exception * must be sustained. French v. Hall, 198 Mass. 147. Quimby v. Tapley, 202 Mass. 601. It does not follow that the bill must be dismissed. In view of the fact that the merits of the controversy have been tried at length, the plaintiff, who has not been paid in full for the work done by him, may desire to apply to the Superior Court for leave to amend his bill by alleging an attempt in good faith to perform his contract, and a substantial performance of it, or a waiver. Bowen v. Kimbell, 203 Mass. 364. He cannot, however, recover on the record as it stands merely by amending his bill. There is no unqualified finding in the master’s report that the plaintiff substantially performed his contract, and there is no express finding on the question of his good faith. Both of these must be established. See Burke v. Coyne, 188 Mass. 401, 404. As the case may go back to the master in the event of an amend [64] ment to the bill, the defendant’s sixth and seventh exceptions * to the report should be considered. These are based upon the findings of the master under the heading of plumbing work and painting. He disallowed the defendant’s claim for a new hot water boiler for the reason that the plumber offered to put one in after the beginning of the suit. He also disallowed her claim for defective painting work on the interior finish and the floors for a like reason. These findings of imperfect work are inconsistent with the finding of complete performance of the contract, and are open to the further objection that offers to make good the defective work, made after the beginning of the suit, are not legally equivalent to performance of the contract. It may be well also to point out an error in the decree itself. The limit of the liability of the defendant George S. Preston, on the facts found by the master, is the amount paid to him by his wife, namely, $1,389.50. The decree orders that he shall pay the full amount ($2,717.76) found to be due from Juliet E. Preston to the plaintiff. It follows from what has been said that the sixth, seventh and [65] twelfth exceptions to the master’s report must be sustained. The other exceptions may be disposed of briefly. The case was submitted on briefs. G. A. Bacon & T. Kirkland, for the defendants. R. W. Ellis, E. H. Brewster & T. W. Ellis, for the plaintiff. The first, third, fourth, fifth, eighth, ninth, tenth, eleventh ,and thirteenth are based on the ground that certain findings are not supported by or are contrary to the evidence. As the evidence on which they were made is not before us, these exceptions must be overruled. Cook v. Scheffreen, 215 Mass. 444. The portion of the second, relating to substantial performance, was immaterial to the issue raised by the pleadings. The denial ■of the motion to recommit was within the discretion of the trial judge. Ginn v. Almy, 212 Mass. 486. The exceptions based on the exclusion of testimony are not argued and may be considered as waived. The exception to the master’s refusal to make certain rulings must be overruled. It does not appear that the master was required to make any ruling of law upon the point to which the ■exception is directed, or that in fact he made any ruling. New England Foundation Co. v. Reed, 209 Mass. 556. The decree is reversed. Unless, the plaintiff is allowed to amend within thirty days from the date of the rescript, his bill must be ■dismissed. If the bill shall be amended; the case will proceed in the Superior Court in accordance with this opinion. Decree accordingly. Footnotes [*] The case was referred to Nathan P. Avery, Esquire, as master. The findings made by him are stated in the opinion. Irwin, J., made an interlocutory decree overruling the defendant’s exceptions to the master’s report and confirming that report. By order of the same judge a final decree for the plaintiff was entered; and the defendant appealed. [*] That exception was as follows: “12. To the finding of the master that there was no evidence introduced or offered which tended to show a variance from the full performance of the contract or any excuse or waiver of non-performance except where the parties agreed between themselves that the contract should be [modified, on the grounds that said finding is inconsistent with other findings of the master, and particularly the findings based on the testimony of the plumber offering to make good for the defective boiler subsequent to the commencing of this action and the finding based upon the testimony of Mr. Costello offering to make good any defects in his work, subsequent to the time suit was brought.” [*] These exceptions were as follows: “6. To the master’s finding disallowing the defendants $10 for a defective boiler which had to be replaced, the master giving as his grounds for disallowing said claim the fact that the plumber offered to make good the defects, it appearing by evidence duly objected to and excepted to by the defendants that said offer was made subsequent to the commencing of this action; whereas the master should have ruled that the plaintiff’s plumber stood in no better position than the plaintiff himself, and that the plaintiff himself by bringing this action and pleading performance of his contract was estopped to offer any evidence tending to prove an offer on the part of himself or any of his sub-contractors to make good that wherein he failed to perform his contract. “7. To the master’s finding disallowing the defendant’s claim for painting and scraping and finishing the floors, basing his reasons for disallowing said claim on the grounds that one Mr. Costello, a sub-contractor under the plaintiff, offered to make good any defective work, it appearing by evidence duly objected to and excepted to by the defendants that said offer to make good that wherein the contractor did not properly perform his contract was made subsequent to the commencing of this action; whereas the master should have ruled that the plaintiff was estopped to offer evidence at variance with the pleadings, wherein he alleged that said contract was performed and that the plaintiff should be entitled to recover all moneys expended in finishing said house in accordance with the terms of the contract.”