Di Ausilio v. Stavropulos

Crosby, J. This is an action of contract to recover on an account annexed. The report recites that evidence was offered tending to show that on or about October 25, 1923, an agent of the defendant left the defendant’s truck at the plaintiff’s garage to be repaired; that the plaintiff made the repairs and furnished the necessary parts therefor; that on Sunday, October 28,1923, an employee of the defendant went to the plaintiff’s place of business to get the truck; that the plaintiff refused to deliver it unless the amount due for work and materials was then paid; that the defendant’s agent went away and soon afterwards, on the same day, returned and tendered to the plaintiff’s foreman a check for the amount due, dated October 29, 1923, drawn by a third person; that upon receipt of this check in payment of the plaintiff’s bill, .the truck was delivered to the defendant; and that early the next day at the request of the defendant, the drawer of the [71] check stopped payment because the defendant stated to him that he was dissatisfied with the work done on the truck by the plaintiff. The plaintiff at the time of the trial was in possession of the check. The defendant pleaded a general denial, payment, and violation of the Lord’s Day statute, G. L. c. 136. The presiding judge found for the plaintiff upon an account annexed, for labor performed and materials furnished in repairing the truck. The defendant filed five requests for rulings, all to the effect that the plaintiff could not recover. They were rightly denied. The work was performed and the materials were furnished on a week day. The check was delivered on Sunday, and although accepted in payment when delivered, the record shows that the defendant caused payment of it to be stopped; he thereby repudiated the payment, and the fact that it was delivered on Sunday became immaterial. This action is not brought to recover on the check and the contention that it was given on Sunday is irrelevant. The judge might well have found that the act of the defendant in causing the maker to stop payment was a trick to cheat and defraud the plaintiff. Payment having been stopped, the plaintiff was not required to return the check. He might treat it as a nullity and maintain the present action. The decision in Gordon v. Levine, 197 Mass. 263, cited by the defendant, is not pertinent to the facts in the case at bar. Order dismissing report affirmed.