Tracy v. Wetherell

42 N.E. 497, 165 Mass. 113, 1896 Mass. LEXIS 188

Opinion

Holmes, J.

The contract under which the petitioners were to “furnish and deliver” certain articles of wood-work for a-house, “all prepared” in shapes like those in another house, even if it necessitated special manufacture and called for things not to be found in the market, which does not appear, would have been satisfied by a delivery of those articles by whomsoever prepared. However likely it may have been that the petitioners would have to prepare the things themselves, the contract did not require them to do so. This being so, the contract was a contract for materials only, and not a contract for labor and materials; there is no “ debt due for labor ” or “ agreement for labor and materials ” within Pub. Sts. c. 191, §§ 1, 2, and the case is governed by Donaher v. Boston, 126 Mass. 309. The distinction is a very old one, and, although there always has been some difference of opinion, the majority have taken the view which we accept. Plerisque placuit emptionem et venditionem aontrahi. Gaius 3, § 147. D. 19. 2. 2, § 1. Under the statute of frauds the matter has been discussed a good deal. The Massachusetts decisions do not go so far as the English in excluding a claim for labor; Goddard v. Binney, 115 Mass. 450; Lee v. Griffin, 1 B. & S. 272; but it has been suggested that, even"under the Massachusetts rule, labor not contracted for but performed as a means of furnishing an article contracted for cannot be made a cause of action. Bacon v. Parker, 137 Mass. 309, 312. In Webster v. Real Estate Improvement Co. 140 Mass. 526, 527, the language relied on by the petitioners is used with reference to labor assumed to be called for by the contract, although performed away from the premises.

Judgment for the respondents.

Footnotes

•

*

A similar decision was made on the same day in Suffolk, in the case of John A. Eisnor & another vs. John P. Dinand & another.

Petition, under Pub. Sts. c. 191, to enforce a mechanic’s lien for labor.

Trial in the Superior Court, without a jury, before Sheldon, J., who found the following facts, namely: that the petitioners on June 12, 1893, made the following written proposal to Samuel H. Johnson: “ We propose to furnish and deliver for house of J. P. Dinand, on Bowdin Ave., Mt. Washington, all window frames and outside door frames, all bracketts, all mouldings on outside of house, all corner and facie boards, columns and balustrades, outside steps and risers, piazza floors, all finish lumber for water tables and belts around house, all milled out according to plans; will cut all shingles for belt (shingles to be furnished by the owner), all carved work as shown on plan, wrought in first class manner according to plans and details for the sum of seven hundred and thirty dollars ($730) ”; that this proposal and its acceptance by Johnson constituted the contract relied on by the petitioners, and under which they performed and furnished the labor charged in the account annexed to the petition; that Johnson was a builder and had a contract with the respondent Dinand to build a house on the premises described in the petition, and belonging to Dinand, for a fixed price; that the petitioners, acting under their agreement with Johnson, made the window frames and other articles named in the proposal out of lumber owned or furnished by themselves, and delivered the frames and other articles to Johnson at the house, and Johnson applied them to the house; and that the frames and other articles were made according to plans and details furnished by the architect employed by Dinand, and were designed to be used and were actually used in the construction of the house. All the labor of the petitioners was performed on their own material, which remained their property until delivered to Johnson as aforesaid, and all their labor was done in their own shop away from the house, except that a small part of their labor, the amount of which could not be determined on the evidence, -was used in obtaining measurements at the building to enable them to do the work required by said agreement. The total amount of labor performed and furnished by the petitioners as aforesaid was seventy-six days, and was worth $304. The petitioners did not cut the shingles for the belt, as provided in the proposal, and were not called on so to do. They performed the agreement in all other respects, and have not been paid for any part of the labor.

The judge found, on the above findings, that the agreement was not an entire contract with Johnson to furnish or supply labor and materials for the house, but merely a contract to supply to Johnson certain materials wrought to stipulated shapes or conditions, and ruled, as matter of law, that the petition could not be maintained; and the petitioners alleged exceptions.

C. G. Keyes & C. D. Keyes, for the petitioners.

J. P. Leahy, for the respondents.

Holmes, J. The petitioners did not cut shingles under their contract. The other part of the contract was for materials only, and is governed by Tracy v. Wetherell, ante, 113. Exceptions overruled.