Candelieri v. Constantino , 269 Mass. 284 ( 1929 )

Sanderson, J.

In the first and third of these actions the plaintiff Candelieri seeks to recover for work furnished and labor performed for the defendant in erecting a three-story brick apartment building on the defendant’s land. In the second, Constantino seeks to recover damages for breach of a building contract. Candelieri will be referred to as the plaintiff, and Constantino as the defendant.

The defendant in his answer to the first action, among other things, sets up as a defence the breach by the plaintiff of a written contract. When the first action was brought the forty-day period before the final payment was due according to the terms of that contract had not elapsed, and for that reason 'the plaintiff brought the third action, declaring on the written contract, which provides that the plaintiff will erect a building according to certain plans and specifications for a specified price, the work to be begun upon the approval of the plans by the building commissioner of Boston. In the third action the plaintiff alleges that he finished the house in accordance with the agreement; he seeks to recover the last payment under the contract, and also to recover for labor and materials on an account annexed. The cases were referred to an auditor, and, pursuant to the rule of reference, were heard together, the auditor’s findings of fact to be final. The auditor took a view and used the information gained thereby in his report. Toward the close of the hearings it was agreed by counsel that the auditor should treat the three actions as if they had been consolidated into one in which the plaintiff sought recovery on an account annexed, in the nature of quantum meruit, for a balance due for building the house and extras, and the defendant sought recoupment for faulty work, omissions, delay and other defects, and they also agreed that all amendments necessary for this consolidation were to be assented to. We interpret this agreement to mean that the plaintiff would confine his cause of action to the recovery under an account annexed of a balance due for building the house and extras, to which the defendant interposed no defence except his right to recoupment. See Bennett v. Kupfer Brothers Co. 213 Mass. 218, 221.

No error of law appears in the denial of the defendant’s motion to recommit the auditor’s report, nor in the refusal of the judge to grant requests for rulings. For the most part the requests seek to raise questions not open after the agreement for consolidation was made, and in so far as they raise other questions the defendant was not entitled to have them given. After the auditor had made detailed findings, from which it appears that there had been many changes by the parties in the plans and specifications, he stated the account, treating the case as if the defendant had received a house worth the contract price, to which he added the cost of certain extras. From this sum he deducted all payments by the defendant, charges for the defendant’s own time and labor, damages for defects, omissions and delay, including loss of rent for that delay, and found that the balance thus ascertained was the amount due the plaintiff. We find no error of law in the items stated as charges or credits in the account or in the manner in which the auditor dealt with the issues submitted to him under the agreement for consolidation.

Exceptions overruled.