Eastman v. Steadman

Wait, J.

After rescript from this court overruling the plaintiff’s exceptions taken at a trial to a jury in the Superior Court, the plaintiff moved, before the trial judge, to amend his declaration to the form suggested in the opinion, 269 Mass. 250, 252, as necessary if this court were to deal with some of the questions which the plaintiff then had argued in his brief and had sought to have considered. The report now before us discloses that the trial to the jury had proceeded throughout as if such amendment had in fact been made; that the evidence taken had been dealt with as though the declaration contained the amendment; that the judge in remarks to the jury in the nature of a charge had covered the points of law, in what were, in substance, rulings. It sets out these remarks in full, and annexes the bill of exceptions filed in this court. The trial judge, inasmuch as there thus had been a full trial of the facts and issues open upon the declaration amended as suggested, and inasmuch as, in his opinion, no recovery by the plaintiff was, as matter of law, possible upon the evidence under the declaration so amended, denied the motion to amend, and reports his denial. If he was in error, the motion to amend is to be allowed and a new trial is to be had.

The matter is properly before us upon the report. G. L. c. 231, § 111. If a new trial, as matter of law, cannot result in a different verdict, and an amendment to the declaration will make no beneficial change in the trial, both may be denied without error. Berggren v. Mutual Life Ins. Co. of New York, 231 Mass. 173, 176, and cases there cited.

The principal contention of the plaintiff cannot be sustained. Stated baldly, his proposition is that one who has agreed with a builder to pay a fixed amount for a completed building and to make payments in instalments from time to time as the work progresses, has broken his contract, if he refuses to advance the amount necessary for the completion or to guarantee payment of the amount to a subcontractor at a moment when the builder is at the end of his resources and unable to go on unless payment or guaranty is made. Not one of the many cases cited in his brief is authority for his position: If we assume that such an agreement is sufficiently definite to be enforced as a contract, and is to be interpreted as an agreement to make payments in reasonable amounts and at reasonable times as the work goes on, Roberts v. Havelock, 3 B. & Ad. 404, it cannot imply an obligation to advance or guarantee for work to be performed. The breach by the defendant relied on by the plaintiff was a refusal to make such an advance and to give such a guaranty. The trial judge was right in so instructing the jury, and in'directing a verdict for the defendant at the trial. He was not in error in refusing an opportunity to have the ruling and direction repeated to a second jury. No claim was made to him or to us that a second trial would develop different facts.

Order affirmed.