Longo Electrical Co. v. Dumais , 1 Mass. App. Ct. 830 ( 1973 )

This is an action of contract brought in a District Court upon an account annexed to recover the unpaid balance of the plaintiff s claim for work and labor performed in installing wiring and electrical heating in the defendant’s cottage. The answer contained a general denial, a claim of payment and an allegation of an accord and satisfaction. The trial judge found for the plaintiff, and the Appellate Division dismissed a report; the defendant’s appeal to the Supreme Judicial Court was transferred to this court (G. L. c. 211A, §§10 and 12). There was evidence that the plaintiff, at the defendant’s request, undertook to do the work in question on a stock and time basis; that following completion of the work the plaintiff issued the defendant a bill therefor in the total amount of $1,248.70; that, although the defendant told the plaintiff he thought the bill was too much and wanted the plaintiff to take less, there was no dispute as to the actual amount of the bill; that the defendant thereafter sent the plaintiff a check in the amount of $846.70 “marked payment in full,” together with a bill from the defendant to the plaintiff in the amount of $402 for work which the defendant claimed he had done for the plaintiff (but for which the trial judge specifically found the plaintiff was not liable); and that the plaintiff cashed and received the proceeds of the defendant’s check. On this evidence the judge was warranted in finding, as he did, that the plaintiffs claim was not unliquidated or disputed. Nor was there error in his general finding for the plaintiff for an unpaid balance due it in the amount of $402, or in his denial of the defendant’s requests for rulings to the general effect that the plaintiff was barred from recovery by reason of its having accepted and cashed the defendant’s check. See Whittaker Chain Tread Co. v. Standard Auto Supply Co. 216 Mass. 204, 208, 209; Moss v. Goldstein, 254 Mass. 334, 336-337; MacDonald v. Kavanaugh, 259 Mass. 439, 444-445; Puritan Wool Co. v. Winsted Hosiery Co. 263 Mass. 467, 471; Russell v. Bond & Goodwin Inc. 276 Mass. 458, 462. See also Shumaker v. Luceme-in-Maine Community Assoc. 275 Mass. 201, 205; Champlin v. Jackson, 313 Mass. 487, 489-491.

Order dismissing report affirmed.