Rothenberg v. Newton Mortgage Corp. , 273 Mass. 399 ( 1930 )

Wait, J.

This case is before us upon an appeal by the plaintiff from the order of an appellate division dismissing a report from the decision of a trial judge who refused the plaintiff’s requests for instructions and found for the defendant. The plaintiff waived the first count of his declaration.. He relied on a count upon a quantum meruit, and a count claiming a balance due upon an order accepted by the defendant. No new question of law is presented. The determination of the question, whether work was done and labor and materials furnished by the plaintiff upon an agreement by the defendant to pay for them, was matter of fact. There was evidence which would support the finding. Consequently neither the Appellate Division upon report nor this court on appeal can disturb it. The decision of the trial judge is final. Saunders v. Smith Granite Co. 232 Mass. 1.

The order accepted by the defendant was conditional on the construction of the building upon which the plaintiff’s work was done reaching the “ stage required by the construction agreement”; and “The discharge of the mortgage, or failure to fulfill the requirements of the construction mortgage agreement shall automatically release the Newton Mortgage Corporation from any performance on account of or under this order.” There was evidence that the owner never completed the building or became entitled to the payment referred to in the order. The building was, in fact, completed by the construction mortgagee, the defendant, after the foreclosure of its mortgage, and after failure by the contracting owner to fulfill its requirements. There is no merit in the plaintiff’s contention that his order became due and payable on the completion of the building by anyone other than the contracting owner. The matter is decided, in principle, by O’Connell v. Root, 254 Mass. 218. No circumstances were established by the evidence which make the decisions in Russell v. Barry, 115 Mass. 300, and Swartzman v. Babcock, 218 Mass. 334, cited by the plaintiff, applicable here.

No evidence required the trial judge to find, as matter of law, that the payment actually made upon the order was anything other than a voluntary accommodation to the plaintiff; or that it amounted to a waiver of the defendant’s defences, and, in any way, bound it to payment of the balance.

The requests denied were based upon contentions already dealt with; or involved findings of fact which the trial judge neither made nor was bound to make upon the evidence. No error appears.

Order dismissing report affirmed.