Albert v. Boston Mortgage Bond Co.

Crosby, J. It appears from the report of the trial judge that one Bessie Hurvich was the owner of a certain parcel of land and that the defendant made a construction loan thereon to her under a written agreement and a supplemental agreement, the loan being secured by a mortgage on the premises. The owner, by her attorney, in writing, on September 28, 1917, assigned to the plaintiff the balance of the payments provided for in the agreement. The building being in an unfinished state, the plaintiff and the defendant’s treasurer had a conversation with reference to completing it, and thereafter the latter prepared and signed an agreement by the terms of which the plaintiff was to complete the work and was to he paid the balances due under the construction agreement, as specified in this new agreement prepared and signed by the defendant’s treasurer. This was sent to the plaintiff, who made certain alterations therein, signed it and returned it to the treasurer, who, the judge found, refused to approve the changes and at once repudiated it and gave notice thereof the next day to the plaintiff. The plaintiff, when notified that the defendant had repudiated the agreement as altered, said in substance that he would see the treasurer about it. Tlie_ judge found that the plaintiff then proceeded to furnish labor and materials on the building, and received from the defendant certain payments on account; and that the payments so received were similar to the first, second and third pay.ments mentioned in the alleged agreement, and $100 in addition. The report shows that the plaintiff did not finish the entire work to be done in order to complete the building. The judge further found that the plaintiff did not consult the defendant’s treasurer “with reference to the changed agreement, but started to work; that there was no meeting of the minds of the parties [121] and that no valid contract was made ... that the defendant did not ratify the contract as altered, and that the plaintiff could not recover. It is clear that, as no valid agreement was entered into between the parties, the plaintiff cannot recover under the first count, which declares on the agreement. Nor can there be a recovery on the second count, for labor and materials furnished. The plaintiff, however, contends that he is entitled to recover under the third count upon a quantum meruit, for the value of the labor and materials less the amount which he has received. That he may recover upon a quantum meruit it must appear that the work was performed under such circumstances as to warrant a finding that he expected the defendant would pay for it, and that the defendant acted with that expectation and allowed him so to act, without objection. The defendant, as mortgagee, under the construction loan agreement was required to make the payments provided for therein. These having been assigned to the plaintiff, as the defendant’s treasurer knew, the latter reasonably might assume that the payments made to the plaintiff were so made in accordance with the agreement, which remained in full force and effect. Day v. Caton, 119 Mass. 513. Homer v. Shaw, 177 Mass. 1. F. W. Zemier & Co. Inc. v. Beacon Investment Association, Inc. 232 Mass. 507, and cases cited. The cases cited by the plaintiff are not applicable to the facts found in the case at bar. The evidence that the owner of the property had assigned to the plaintiff her right to the payments to become due under the construction loan agreement, and that the defendant did not assent to it, that the plaintiff prepared a modification of the construction loan agreement which resulted in the proposed contract between him and the defendant to which the latter refused to assent, was all admissible and material upon the question whether there was any understanding or implication of a promise that payments should be made by the defendant for the labor and materials furnished. The finding for the defendant was not unwarranted, and the rulings requested were rightly refused. Order dismissing report affirmed.