Bailey v. Marden , 193 Mass. 277 ( 1906 )

Rugg, J.

This is an action of contract to recover compensation for hauling wood for the defendant. The declaration is upon an account annexed. The plaintiff contended that the defendant made an oral contract, under which the plaintiff was to haul for the defendant some wood from the lot where it was cut to a coal yard, for which the defendant was to pay the plaintiff one dollar per cord. The plaintiff hauled all the wood which the defendant had cut and ready for him in September, 1905, and was paid for it. There being no more wood ready at the time he went to another job, returning to work upon the defendant’s lot in November of the same year. The defendant refused to pay anything for this work until all the wood upon the lot had heen hauled away, hence this action. In the Superior Court, where the case was heard without a jury, the judge found as a matter of fact that the agreement was that the plaintiff should haul all the wood at the price of one dollar a cord, the defendant to cut it and have it ready for him; that the agreement made no provision for deferment of payment until all the wood was hauled, that the plaintiff performed his part of the contract as far as he could, and that there was a breach of the contract on the part of the defendant.

The bill of exceptions does not purport to disclose all of the evidence, but the testimony of the defendant abundantly justifies the findings made by the judge who heard the case and the verdict rendered by him. The prayers presented by the defendant were all immaterial, in view of the testimony of the defendant and the facts found. Even if the contract as originally made was entire, to haul all the wood upon the lot, yet it was broken by the defendant without fault on the part of the plaintiff, and under these circumstances the latter is entitled to recover on a quantum meruit the full value of the work done by him. The defendant cannot be permitted to set up a contract, the performance of which he himself has prevented, as a bar to paying the plaintiff his fair compensation. Fitzgerald v. Allen, 128 Mass. 232. DeMontague v. Bacharach, 187 Mass. 128. But even if the facts were not so clearly against the defendant, we could not attempt to pass upon the weight and effect of the evidence and revise the finding, provided there were facts and circumstances upon which the finding might be based, nor unless it appeared that it was unwarranted by the evidence. Wylie v. Cotter, 170 Mass. 356.

Exceptions overruled.