Bean v. Pratt

19 Mass. App. Dec. 186

Opinion

Gadsby, P. J.

This is an action of contract in which the plaintiff seeks to recover for services and materials which he supplied on the defendant’s home.

The evidence showed that the plaintiff, a plumber, had a contract with a general contractor for doing certain plumbing and heating at the home of the defendant. The plaintiff testified that he had been hired as a subcontractor by the general contractor and had looked to the general contractor for payment. The plaintiff further testified that it was not until after the work had been completed and payment had been refused to him by the general contractor that he had looked to the defendant for payment.

The plaintiff made certain requests for rulings, all of which were denied by the trial judge without any findings of fact.

There is need of discussing only on one request of the plaintiff and that is, “The evidence warrants a finding for the plaintiff”.

The plaintiff has cited Bresnick v. Heath, 292 Mass. 273, as the basis for his contention that the judge erred in denying this request. The plaintiff contends that the request should be granted unless the judge referred to the requested ruling as immaterial on the facts found. While this might be so in the usual situation, yet we have a case here where the judge had no crucial question of fact to submit to himself as jury.

As matter of law the judge had no option but to find for the defendant because the plaintiff himself admitted he never had any contract with the defendant and that he looked to the general contractor for payment. It was not until after the work had all been completed and he was having difficulty getting paid by the general contractor, that he decided' he would try to seek payment from the defendant.

There being no prejudicial error committed by the trial judge in his denial of the plaintiff’s request for rulings of law, the report is dismissed.

Merrill B. Nearis of Gloucester, for the Plaintiff submitted brief.