Needham v. Sisters of Mercy

NOURSE, J.

Plaintiff sued as assignee of Owen McHugh upon two counts, one to recover the amount remaining due for work completed under an express written contract and under a subsequent oral contract, and another upon a

quantum meruit

for the work done. The trial court found in accordance with the evidence that the work was performed in compliance with the terms of the contracts and that the sum of $6,088.50 agreed to be paid under the contracts had not been paid. Judgment in that sum and interest from November 11, 1908, was awarded to the plaintiff.

While not conceding the correctness of the finding of the trial court as to the amount due under the contracts (though as to this it must be said there is no room for doubt), the defendant set up four defenses to payment: (1) That a certificate was not obtained from the architect showing that the contractor was entitled to the money sued for and that such a certificate was required by the written contract; (2) that Owen McHugh, by express agreement made with the defendant through its architect and its president, agreed to accept the sum of $7,000 as a full and final payment in respect to the matters then pending between them, and that in compliance with said agreement the defendant paid Owen McHugh the sum of $7,000 as a full and final payment; (3) that an accord and satisfaction arose when Owen McHugh cashed two checks aggregating $7,000 knowing that the payment thereof was made to him “as per” the architect’s certificate, which described such payment as a “full and final payment”; (4) that an account was stated between Owen McHugh and defendant when he cashed said checks and appropriated the proceeds in the manner above stated.

[343]

The trial court found against all these defenses. As to the first, it found that neither the plaintiff nor his assignor had obtained an architect’s certificate for the amount in suit, but that their failure to do so was excused by the arbitrary refusal of the architect to issue such a certificate. This finding was within the issue framed by the pleadings and was supported by an abundance of evidence. As to the second defense, the trial court found that no express agreement had been made to accept the sum of $7,000 as a full and final payment, and though there is some conflict in the testimony of the witnesses called upon this issue, there is very substantial and persuasive testimony in support of the finding. It need scarcely be said that the trial court was required to pass upon the credibility of the witnesses who appeared before it and that this finding cannot be disturbed on appeal.