Slotnick v. Smith

Crosby, J. This is an action of contract to recover $2,122.33 with interest thereon, being the balance due the plaintiff for materials furnished and labor performed under a written contract between him and Robert A. Doyle & Company, Inc. The materials furnished and labor performed were in the construction of an apartment house by the Doyle company (the general contractor) under a contract with the defendants, who were the owners of the building. On August 14, 1920, when the company made an assignment for the benefit of its creditors, the plaintiff held two of its notes for $1,000 each, which included a part of the balance due the plaintiff under its contract. At the time of the assignment the plaintiff had not finished the work required to be done by him. After he received notice that Robert A. Doyle & Company, Inc., could not pay at maturity one of the notes [305] given by it, he ceased working on the house. He testified that later the defendant Smith told him in substance that, if he would finish the job, he, Smith, would pay him the balance then due him. He further testified that, relying upon the promise so made, he performed the remainder of the work required of him under his contract with Robert A. Doyle & Company, Inc. The defendants denied that they made any promise to the plaintiff and pleaded a general denial and the statute of frauds. The question is, whether the trial judge erred in refusing to rule, as the defendants requested, that the alleged promise was within the statute of frauds and for that reason the plaintiff could not recover. The defendant Smith testified that after the Doyle company failed, he and his partner, MacLean, finished the job; that he found out who all the subcontractors were because he wanted the same contractors to go ahead and finish the work; that it was much easier and less work for him to have them continue as it would tend to get the building completed more quickly which would be a great benefit to him financially. This evidence warranted a finding that there was a valuable consideration for his promise to pay the plaintiff if such a promise were made. To entitle the plaintiff to recover, however, it was also necessary for him to prove that he accepted the defendants as his debtors in place of Robert A. Doyle & Company, Inc. If the, plaintiff never released the company, then the defendants’ promise was to pay the debt of another, and, not being in writing, it was within the statute of frauds. There was evidence that the plaintiff did not assent to the assignment made by the Doyle company. He testified that he never made any claim on the company after the assignment; that whatever rights he had against it he gave up entirely and looked to Smith for his money; that the reason he retained the $1,000 note of Robert A. Doyle & Company, Inc., at the time of the trial, was because from the date of the assignment until that time he never had any opportunity to return it, and never saw Doyle after the note was returned by a bank to which it had been given for collection. He [306] further testified that when the defendant Smith promised to pay him if he would finish the job, he (Smith) said, “You go and finish the job, I have plenty of money left over, you finish the job and you will get your pay from me.” Although the evidence upon the issue whether the plaintiff accepted the defendants as his debtors in place of Robert A. Doyle & Company, Inc., and released the company is close, yet in consideration of all the evidence and the reasonable inferences to be drawn therefrom, it was a question for the jury whether the plaintiff gave up and released the company and relied on the defendants solely for the payment of the amount due him. Griffin v. Cunningham, 183 Mass. 505. Paul v. Wilbur, 189 Mass. 48. McNulty v. Cruff, 211 Mass. 489. Pope & Cottle Co. v. Wheelwright, 240 Mass. 221. Kirtley v. C. G. Galbo Co. Inc. 244 Mass. 179. Hill v. Grat, 247 Mass. 25, 27. Sullivan v. McEttrick, 248 Mass. 496. Hammond Coal Co. Inc. v. Lewis, 248 Mass. 499. Exceptions overruled.