Fall River Oil Heating Co. v. Gildard

Massachusetts Supreme Judicial Court

Fall River Oil Heating Co. v. Gildard

265 Mass. 513

CourtMassachusetts Supreme Judicial Court

DecidedJanuary 4, 1929

StatusPublished

Cited by3 cases

This text of 265 Mass. 513 (Fall River Oil Heating Co. v. Gildard) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fall River Oil Heating Co. v. Gildard, 265 Mass. 513 (Mass. 1929).

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Opinion

Wait, J.

This is an action by the payee against the maker of two promissory notes, which were delivered in connection with a contract for the installation of an oil heating system by the plaintiff in premises of the defendant. The written contract contained no agreement that the system should be satisfactory. It provided that when the oil tank was installed a note for $500 should be given in part payment, and that a note for the balance due on the contract should be given when the work was completed. The note for $500 sued upon in the first count was delivered before the tank was installed, and there was evidence which would sustain a finding that, in order to obtain it at that time, the plaintiff agreed that the system should be satisfactory. The note declared upon in the second count was delivered when the work was finished. The defendant’s answer set up that his signature was obtained through misrepresentations of the plaintiff; that there was no consideration for the notes; ■that the consideration had failed; that the notes were to be paid only if the defendant was satisfied with the contract; that he was not satisfied and so refused payment.

The jury found for the defendant. The plaintiff’s only exceptions are to the refusal of the judge to direct a verdict for the plaintiff on both counts, and to so much of the charge as permitted the jury to find that there was a supplementary agreement which could defeat the. action on the notes, and [515]*515instructed them that there was evidence of modification or addition to the contract based upon any question of the work being satisfactory to the plaintiff.

We find no merit in the exceptions. No objection was made to the introduction of the evidence we have summarized. It could be given such probative force as it possessed. Gethins v. Breeyear, 252 Mass. 326, 327. There can be no doubt that the written contract could be modified after its execution by oral agreement based upon consideration. Cummings, v. Arnold, 3 Met. 486, 489. Moskow v. Burke, 255 Mass. 563.

The giving of the first note before the time called for by the original contract could be found to be a sufficient consideration for a modification adding an agreement that the system, or the work, should be satisfactory to the defendant and if not that he might refuse payment of .the notes. Manifestly the questions, whether such agreement and modification were made and whether the work was satisfactory, were for the jury. The case does not turn upon the construction of the original contract and whether oral evidence could be admitted to affect that construction; nor, necessarily, upon whether the giving of the second note was such-acceptance of performance that no defence to it was open. The rulings and instructions were proper, and the order must be

Exceptions overruled.

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Wait, J.

This is an action by the payee against the maker of two promissory notes, which were delivered in connection with a contract for the installation of an oil heating system by the plaintiff in premises of the defendant. The written contract contained no agreement that the system should be satisfactory. It provided that when the oil tank was installed a note for $500 should be given in part payment, and that a note for the balance due on the contract should be given when the work was completed. The note for $500 sued upon in the first count was delivered before the tank was installed, and there was evidence which would sustain a finding that, in order to obtain it at that time, the plaintiff agreed that the system should be satisfactory. The note declared upon in the second count was delivered when the work was finished. The defendant’s answer set up that his signature was obtained through misrepresentations of the plaintiff; that there was no consideration for the notes; ■that the consideration had failed; that the notes were to be paid only if the defendant was satisfied with the contract; that he was not satisfied and so refused payment.

The jury found for the defendant. The plaintiff’s only exceptions are to the refusal of the judge to direct a verdict for the plaintiff on both counts, and to so much of the charge as permitted the jury to find that there was a supplementary agreement which could defeat the. action on the notes, and [515]*515instructed them that there was evidence of modification or addition to the contract based upon any question of the work being satisfactory to the plaintiff.

We find no merit in the exceptions. No objection was made to the introduction of the evidence we have summarized. It could be given such probative force as it possessed. Gethins v. Breeyear, 252 Mass. 326, 327. There can be no doubt that the written contract could be modified after its execution by oral agreement based upon consideration. Cummings, v. Arnold, 3 Met. 486, 489. Moskow v. Burke, 255 Mass. 563.

The giving of the first note before the time called for by the original contract could be found to be a sufficient consideration for a modification adding an agreement that the system, or the work, should be satisfactory to the defendant and if not that he might refuse payment of .the notes. Manifestly the questions, whether such agreement and modification were made and whether the work was satisfactory, were for the jury. The case does not turn upon the construction of the original contract and whether oral evidence could be admitted to affect that construction; nor, necessarily, upon whether the giving of the second note was such-acceptance of performance that no defence to it was open. The rulings and instructions were proper, and the order must be

Exceptions overruled.

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