Vincenzo v. Petroni

25 Mass. App. Dec. 202

• Court: Massachusetts District Court, Appellate Division
• Decided: January 24, 1963
• Docket: No. 5687; No. 4180
• Status: Published

Opinion

Connolly, J.

This action of contract involves certain masonry work done by the plaintiff on premises owned by the defendants. The declaration contains three counts — the first being on an account annexed, the second a count for labor and materials and the third a count in quantum meruit. The answer of the defendants is a general denial.

David W. Hays, of Boston, for the Defendant. Harnish, Mansfield, Marsh & MacDonald, of Waltham, for the Plaintiff.

The defendant, Mary E. Petroni, did not testify at the trial and all reference to the testimony of the defendant in this opinion refers to the testimony of Francis J. Petroni.

The following facts were undisputed:

The defendant entered into a .contract with one Leonide Leger, a general contractor, under which the contractor was to build a house for the defendants for a stipulated price on the premises in question. Sometime in the early part of 1961, the plaintiff was engaged by the general contractor to do certain masonry work on the premises on which the defendants’ house was being built. Westminster Nat. Bank v. Graustein, 270 Mass. 565, 574.

Further as agreed by the defendant in his brief, the question of an oral assignment is a question of fact and there is ample evidence of this by the delivery to the plaintiff of the written contract. Currier v. Howard, 14 Gray 511, 513.

We find no error in the denial of the defendant’s request for ruling #3.

The report is to be dismissed.