Allen v. Leonard , 82 Mass. 202 ( 1860 )

Bigelow, C. J.

1. The validity of a contract similar to the one relied on by the plaintiff in the present case was affirmed on full consideration in Rand v. Mather, 11 Cush. 1. The bill of exceptions does not show that the plaintiff claimed to recover for any labor done or materials furnished in the erection of the building under the written contract prior to the agreement alleged to have been made by the defendant. Nor does it appear that anything was included in the sum found by the jury, except that which was supplied on the faith of the defendant’s agreement. The facts stated to have been proved at the trial are somewhat indefinite on this point, but we cannot presume, in the absence of any statement to that effect, that the plaintiff was allowed to recover for items of charge which constituted a valid debt of a third person. The inference that the plaintiff did not claim to recover for that which was done under the written contract prior to the agreement entered into with the defendant is strengthened by the fact that the amount of his demand as set out in the account annexed is much less than the original contract price. It was a case in which the written contract was abandoned by the plaintiff, and he refused to continue the work or furnish materials under it. The agreement of the defendant was the sole consideration on which the plaintiff proceeded and completed the building.

2. The evidence of the plaintiff’s statement at the time of filing his claim for a lien against L. H. Leonard was competent. It tended directly to rebut the inference which the defendant sought to draw from the fact that such lien had been claimed by the plaintiff, and being a part of the same transaction put in evidence by the defendant, it was admissible as res gestee.

3. Evidence that the defendant was a person possessed of large property and in good credit was immaterial, because it was not accompanied by proof, or by any offer to show facts from which it could be inferred, that the pecuniary condition of the defendant was known to the plaintiff.

Exceptions overruled.