
    David J. Champy & another vs. Merrimack Park Auto Theatre, Inc. & another. Same vs. Same.
    Essex.
    October 7, 1942.
    December 1, 1942.
    Present: Field, C.J., Lummus, Qua, Dolan, & Cox, JJ.
    
      Contract, Building contract, Performance and breach, Implied.
    No error appeared in the ordering of judgment for the plaintiff in an action upon quantum meruit for construction work where it appeared that, while the plaintiff had failed in full performance of a contract for such work, he had substantially performed it in good faith.
    Two actions of contract. Writs in the District Court of Lawrence dated August 27, 1938, and in the Superior Court dated April 24, 1939.
    On removal of the first case to the Superior Court and after reports of an auditor, the cases were heard together by Baker, J.
    
      M. Nicholson, for the defendants.
    No argument nor brief for the plaintiffs.
   Lummus, J.

These cases were heard by an auditor whose findings of fact were to be final, and were presented to the court below on his reports. That court refused to order judgments for the plaintiffs on counts that alleged full performance of the building contract upon which the actions were brought;, because the auditor found substantial performance and waiver of full performance rather than full performance. After recommittal, a count was added to each declaration on a quantum meruit, and judgments for the plaintiffs were ordered on that count, under the rule stated in Andre v. Maguire, 305 Mass. 515, and Russo v. Charles I. Hosmer, Inc., ante, 231. The defendants appealed to this court.

In the work the variations from the contract were small. They did not prevent the contract from being substantially performed. Good faith on the part of the plaintiffs was found. In each case the entry will be

Order for judgment for the plaintiffs affirmed.  