Contract, Rescission, Performance and breach. Assignment.
In an action of contract against a building contractor the plaintiff alleged that he was the assignee of a sum of money which the defendant owed a subcontractor. At the trial of the action before a judge without a jury there was evidence tending to show that the subcontractor had made a contract to do certain construction work for the defendant and that the plaintiff lent money to use in performing the contract to the subcontractor, who assigned to the plaintiff as security all sums due and to become due to him under the contract, and that the assignment was "accepted" by the defendant in writing; that thereafter because of lack of funds the subcontractor informed the defendant that he would have to "give the job up," and the defendant agreed with him that he should go on with the work, that the defendant should pay his debts already incurred for labor and material, should advance what money was necessary for the remainder of the work and should pay him $25 per week for his services in superintending the work and for the use of his tools. The work which originally the subcontractor had agreed to do then was completed without any ostensible change in the relations of the defendant and the subcontractor. The action was for an amount alleged to have become due to the subcontractor under the original contract after the date of the new arrangement between the defendant and the subcontractor. The judge found for the defendant. Held, that the facts warranted a finding that the original contract had been rescinded by the new arrangement between the defendant and the subcontractor, and that therefore the judge's finding was warranted.
BRALEY, J.
The defendant's liability upon acceptance of the assignment depended upon the assignor's performance of his contract to transport, erect and paint the steel work required for a section of a subway which the defendant was building in accordance with the plans and specifications of the transit commissioners. If not fully performed the entire contract price although payable in monthly instalments never became due, or if before completion the assignor by reason of his inability to go on, voluntarily abandoned the work, he could not recover for work and labor already performed and furnished. Homer v. Shaw, 177 Mass. 1. Burke v. Coyne, 188 Mass. 401, 404. Buttrick Lumber Co. v. Collins, 202 Mass. 413, 420. After the assignor entered upon the performance of the contract he informed the defendant, that owing to the failure of the plaintiff to advance money, which apparently he had agreed to furnish, he would be unable to complete the work as his workmen had not been paid, and if their wages remained in arrears they would leave his employment. The evidence, if no further action had been taken by the parties, and performance of the work had ceased, would have warranted a finding, that, the assignor having repudiated or abandoned his contract before the first instalment of the contract price became payable, the defendant would not have been indebted to the plaintiff. Homer v. Shaw, 177 Mass. 1. Bowen v. Kimbell, 203 Mass. 364, 370, 371. Barrie v. Quinby, 206 Mass. 259, 267. But without any ostensible change the assignor remained in charge of the work until completion, and the plaintiff contends under the substituted declaration, that the money thereafter received should be considered as earned under the original contract. The assignor needed immediate financial assistance, and if the defendant might have advanced the money which the evidence shows he furnished to enable him to pay his employees, yet if he had done so the plaintiff's assignment would have been given priority over the loan. Buttrick Lumber Co. v. Collins, 202 Mass. 413. The parties while they could not modify to his prejudice the terms of the contract assigned without the plaintiff's consent, or by a secret fraudulent arrangement deprive him of the benefit of the assignment, were not precluded from entering into a new agreement if performance by the assignor had become impossible from unforseen circumstances. Eaton v. Mellus, 7 Gray, 566, 572. Linnehan v. Matthews, 149 Mass. 29. It consequently was a question of fact upon all the evidence for the presiding judge before whom the case was tried without a jury, to decide, whether upon facing the exigencies of changed conditions the parties mutually agreed to a cancellation, and thereupon in good faith an independent contract was substituted, by the terms of which the defendant undertook to furnish sufficient funds to pay the workmen the wages then due, and their future wages as they accrued, while the assignor was to receive a weekly salary for his personal services of supervision. The refusal to comply with the plaintiff's requests for findings, and the general finding for the defendant manifestly show his conclusion to have been, that the first contract was treated as having been rescinded, and the plaintiff had no enforceable claim against the defendant under the assignment. Earnshaw v. Whittemore, 194 Mass. 187, 192. Glidden v. Massachusetts Hospital Life Ins. Co. 187 Mass. 538, 541. The plaintiff's requests for rulings in so far as they were not given were rightly refused, and the exceptions must be overruled.
So ordered.