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211 Mass. 489

McNulty v. Cruff

Massachusetts Supreme Judicial Court

Decided May 20, 1912

Massachusetts Supreme Judicial Court · decided 1912-05-20

<p> Novation. Contract. Statute of Frauds. </p> <p>At the trial of an action by a subcontractor against the owner of a building to recover for work done by the plaintiff under a contract originally made by the plaintiff with a general contractor, there was evidence tending to show that, because of a failure by the general contractor to pay the plaintiff in accordance with his agreement with him, the plaintiff ceased work, that after the work had ceased for some days, there was a conversation between the defendant and the plaintiff in the presence of the general contractor in which the defendant showed to the plaintiff some work not described in the contract which he wanted done, saying "I don’t want to pay you one cent for it, but I want you to finish up the balance of your contract and I will pay you your money at any time, either before or after the work is done.” Thereafter the plaintiff did the extra work described and completed the contract. Held, that there was evidence that for a good consideration the defendant had agreed to assume the obligation of the general contractor to the plaintiff and that the plaintiff had accepted the substitution of the defendant for the general contractor as his debtor; and that the defendant’s promise was not within the statute of frauds.</p>

Cited by 3 later decisions — most recently December 1942

3 state decisions

Relies on Paul v. Wilbur · Trudeau v. Poutre

Good law ✅— No negative treatment on recordhow we know

Decided 1912-05-20

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Hammond, J.

¶1If, as the result of the conversation which took place on August 10 between the plaintiff and the defendant in the presence of Hazard, there was an understanding between the three that the defendant, in consideration of work to be done by the plaintiff, should pay the plaintiff what Hazard had agreed to pay him and the plaintiff accepted the defendant as his debtor in the place of Hazard, then the promise was not within the statute of frauds and the plaintiff, having done the work promised, may hold the defendant. Trudeau v. Poutre, 165 Mass. 81. Paul v. Wilbur, 189 Mass. 48, and cases cited.

¶2The defendant, conceding this, strenuously insists that there is no evidence of such an understanding. On this the case is close. Considering however the conversation itself, the circumstances under which it was held and the evidence as to the subsequent conduct of the parties, we are constrained to say that, brief and meagre as is the evidence, the plaintiff had a right to go to the jury on the question whether such an understanding was reached.

¶3 Exceptions sustained.

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