Jackson v. Carson

35 N.E. 483, 160 Mass. 215, 1893 Mass. LEXIS 50

• Court: Massachusetts Supreme Judicial Court
• Decided: November 29, 1893
• Status: Published

Opinion

Holmes, J.

The plaintiff’s declaration was for work done and materials furnished, and for storage. His evidence showed a contract to employ him to build some houses, and a subsequent refusal to do so. There was also evidence that, at the defendant’s request, in order to be ready to fulfil his part of the contract, the plaintiff bought lumber. The mere fact of the purchase by the plaintiff as a means of performing his contract did not make the defendant answerable for the price. Bacon v. Parker, 137 Mass. 309, 311. There was no evidence that any part of the lumber was delivered to the defendant. The title did not pass to him at the moment of the purchase, and nothing happened afterwards to make it pass. It is true that, when the plaintiff said to the defendant that the lumber must be unloaded, and asked what he should do with it, the defendant suggested hiring a piece of land, and that, when the plaintiff told him that he had found a lot for ten dollars a month where they could store the lumber and have room for framing it, the defendant answered that, as it would have to stay there but a short time, they had better put it there. But this, on the face of it, was while the parties expected to carry out their contract, and to build. Like the request to purchase lumber, it had reference to that, and did not affect the legal relations of the parties. It follows, that the defendant is not liable for materials furnished, or for the storage of those materials, eo nomine.

Exceptions overruled.