
    Alma N. Nickerson vs. Ricci & Ricci Excavating Co.
    No. 92328.
    February 12, 1935.
    For plaintiff: Sallet & Ress.
    For defendant: William Law.
   POULIOT, J.

After a jury had returned -a verdict for tlie plaintiff in tlie sum of $979.62, tlie defendant filed a motion for a new trial on tlie usual grounds, and this motion is now before tbe Court.

On March 30, 1932, tbe parties entered into a written contract for material and labor “to toe done strictly in accordance with tbe specifications and plans for tbe Canton-Westwood-Ded-ham job let by the Department of Public Works of the Commonwealth of Massachusetts * * * ”. Ex. 1, page 1.

On tbe third page of Exhibit 1 appears a provision as to the method of payment, “in accordance with the manner in which such payments are made by the Department of Pulblic Works”.

After some of the work had been done, tbe plaintiff, to use his expression, “quit”, and gave as his reason that the defendant bad not kept its end of the bargain in making payments.

There is a dispute as to which party breached the agreement. The defendant contends the plaintiff refused to go on with its provisions, and tbe plaintiff claims he “quit” because he was not being paid enough money to meet his payroll. There is no provision in the contract as to any specific dates when payments are to toe made, nor is there any provision that the defendant shall finance the plaintiff’s payroll. Payments were to be made under the rules set out toy the Department of Public Works and, in answer to the Court’s question, plaintiff stated that that meant that the defendant was to make payment after it received payment through the Department. On the evidence presented on this point, the Court feels that tbe plaintiff .did not prove, by a fair preponderance of the testimony, that be was justified in “quitting” and therefore can not charge tbe defendant with having breached the contract.

The amount of damages does not seem fair, even if the plaintiff were entitled to recover.

The plaintiff claims for material and labor the sum of $1613, plus a disputed item of $150.01 loss of profits. Allowing him bis full claim, tbe total is $1763.01.

Now, against that, we have admitted receipts of $721.36. In addition tbe defendant either paid out, or was charged with, several items belonging to tbq plaintiff, such as $400 paid to two of his employees, one a relative, $433.87 back pay due his men, and $483.90' paid to laborers to complete plaintiff’s job. All these latter items were required by the Department of Public Works, were taken out of defendant’s money and were for tlie benefit of plaintiff. They total $1117.77. Added to tbe $721.36 admitted payment, they total to more than tbe amount of plaintiff’s claim. There are other items which are in dispute and the Court is giving plaintiff the benefit of those items, but it seems to the Court that the items allowed were so well proven by the defendant that there can’t be much question about them.

Therefore, the verdict not doing substantial justice, defendant’s motion for a new trial is granted.  