
    F. W. Zemier and Company, Incorporated, vs. Beacon Investment Association, Incorporated.
    Suffolk.
    March 4, 1919.
    March 31, 1919.
    Present: Rugg, C. J., DeCourcy, Crosby, Pierce, & Carroll, JJ.
    
      Contract, What constitutes, Implied.
    In an action for work and materials performed and furnished in the installation of a heating system in a garage, against a mortgagee of the land on which the garage was constructed, which had entered to foreclose its mortgage, it appeared that the mortgagor was the owner of the land on which the garage was built and had given the mortgage to the defendant to secure the sums of money to be advanced to such landowner from time to time as the work on the garage progressed, and that, before each advance was made, the agents of the defendant examined the property to ascertain the progress of the work. The judge ordered a verdict for the defendant. Held, that the ordering of the verdict was right; that the defendant’s knowledge of the work and its entry on the premises for the purpose of foreclosing its mortgage were no evidence that the defendant impliedly promised to pay the plaintiff for the work and materials.
    Contract against a corporation, the mortgagee of a parcel of land with the buildings thereon numbered 2 on St. Paul Street in Brookline, which had entered to foreclose its mortgage on the property, for $1,692.22 for work and materials performed and furnished in installing a heating system in a garage on the land from October, 1917, until some time in January, 1918. Writ dated February 11, 1918.
    In the Superior Court the case was tried before Keating, J. The evidence is described in the opinion. At the close of the evidence on motion of the defendant the judge ordered a verdict for the defendant and reported the case for determination by this court, with a stipulation that, if the judge was right in ordering the verdict, judgment should be entered for the defendant upon that verdict; but that, if the case should have been submitted to the jury, judgment should be entered for the plaintiff in the sum of $1,100.
    
      W. W. Risk, (J. S. C. Nicholls with him,) for the plaintiff.
    
      I. Harris, for the defendant.
   Crosby, J.

This is an action of contract to recover for materials furnished and labor performed in the installation of a heating system in a garage. It is agreed that one Flynn, who was the owner of the land on which the garage was erected, on September 27, 1916, executed a mortgage to the defendant for $30,000, which was to be advanced to the mortgagor as the work on the garage progressed; that.the work was started in 1916; that the defendant was the holder of a prior mortgage for $8,000 on the premises, which was assigned to it on September 27, 1916; that on October 17, 1917, the defendant made an entry on the premises for the purpose of foreclosing both mortgages for breach of the conditions thereof, the entries being recorded on November 1, 1917.

Aside from the foregoing facts, the only other evidence introduced at the trial was the testimony of two witnesses: One Florence, the president of the plaintiff company, testified that the work for which the plaintiff seeks to recover was performed under a contract with the husband of the mortgagor Flynn; that it was commenced in October, 1917, and continued until some time in January, 1918. The other witness, one Henderson, who was the treasurer of the defendant association, was called by the defendant and testified that as the work progressed payments were made to the mortgagor from time to time; that the work was started in 1916, and was not completed in October, 1917, although it was then occupied by a tenant. On cross-examination this witness testified, “that the heating system was partially, if not all in, in October, 1917, . . . that every time Flynn would ask for a payment on our mortgage, we would go and examine the property.” He also testified: “I was there in October, 1917.”

The fact that the defendant made an entry upon the premises for the purpose of foreclosing the mortgages to itself, was wholly' insufficient to charge it with liability for the work done by the plaintiff. That the defendant may be chargeable upon an implied contract for the work, it must appear that it was performed under such circumstances as to warrant a finding that the plaintiff expected the defendant would pay for it, and that the defendant acted with that expectation and allowed the plaintiff so to act, without objection. The testimony of the defendant’s treasurer, “ that every time Flynn would ask for a payment on our mortgage, we would go and examine the property,” was evidence that the defendant had knowledge that the work was being performed; but it was not sufficient to warrant a finding that the defendant knew or ought to have known that the plaintiff acted upon the expectation that the work would be paid for by the defendant. The loan which the defendant made to Flynn, the mortgagor, was for the purpose of enabling the latter to build the garage, and the payments made by the defendant to her were for that purpose. Under the circumstances the defendant could not reasonably have been found to have understood that the plaintiff would expect it to pay for the work. Day v. Caton, 119 Mass. 513. O’Conner v. Hurley, 147 Mass. 145. Livingston v. Hammond, 162 Mass. 375. Kirchgassner v. Rodick, 170 Mass. 543. Spencer v. Spencer, 181 Mass. 471. McKenna v. Twombly, 206 Mass. 62. Lyons v. Jackson, ante, 275.

For the reasons stated we do not think that the evidence, most favorable to the plaintiff, was sufficient to warrant a finding that the defendant impliedly promised to pay the plaintiff. The presiding judge rightly ordered a verdict for the defendant, and in accordance with the report the entry must be

Judgment for the defendant on the verdict.  