Patch v. Collins , 158 Mass. 468 ( 1893 )

Lathrop, J.

We see no ground upon which this bill can be maintained. The defendant made a sub-contract to furnish the materials and labor necessary in the mason-work of the house of the first named plaintiff, for the sum of nine hundred and twenty-five dollars. The bill does not set forth when this amount was payable, but we assume that it was when the work was done. Subsequently he received three hundred dollar’s from the general contractor, which he applied to the payment for the materials. Rome months later, when the principal sum was coming due from the plaintiff to the general contractor, she obtained the latter’s consent that three hundred dollars of the sum should be paid to the defendant “ on account of the labor done and to be done under the sub-contract.” This money was tendered to the defendant, “ to be applied on account of labor furnished or performed by him.” The defendant’s work was not then completed, and, so far as appears, nothing was they due him. It is true that the bill alleges that this sum was then due him for labor; but, taking this allegation in connection with the other allegations of the bill, we think it is fairly to be construed to mean that the defendant had earned or expended this amount for labor. If this amount was in fact then due him, and the defendant’s contention is sound that the tender of an amount due less than the total sum discharges the lien pro tanto, although not accepted, the plaintiff could have pleaded this in defence of the action brought by the defendant in the Superior Court to enforce the lien given him by the Pub. Sts. c. 191, § 2.

If there was nothing due the defendant at the time of the tender, we are of opinion that he was not obliged to receive the money on account.

In this view of the case, it is unnecessary to consider whether, as the plaintiff is not now prepared to pay the money tendered, a court of equity should aid her. Bill dismissed.