Cleary v. Sohier

A workman, who had contracted to lath and plaster a building for a certain snm, had lathed the building and put on the first coat of plaster, when, without his fault, it was destroyed by fire. Held, that he could recover for his work, under a count for work done and materials furnished.

Contract on an account annexed to recover $474, with inter est, for work done and materials furnished. The case was submitted to the Superior Court, and to this court on appeal, upon an agreed statement of facts in substance as follows: The plaintiff made an oral contract with Henry Famum, of whose estate the defendants are trustees, to lath and plaster a certain building on Federal Street for the sum of forty cents per square yard. No agreement was made, and nothing was said, as to terms or times of payment, but only that the work was to be done for forty cents per yard. The plaintiff lathed and put on the first coat of plaster a few days before the great fire of November, 1872, and was ready and willing and in good faith intended to put on the second or skim coat, so called, and would have begun November 11, so to do, when the fire of November 9 and 10 wholly destroyed the building. There was no negligence, default or bad faith on the part of either of the parties, and the fire was an unavoidable casualty. The amount charged by the plaintiff, to wit, $474, is a reasonable and proper charge for the part of the work done; and, if the plaintiff is entitled to recover anything, as matter of law, under these facts, he is entitled to recover that sum and interest from November 10,1872. The plaintiff did not demand said sum until after the fire, and not till some months thereafter, and did no more work under the contract. Farnum died soon after the fire, and the defendants represent him and his estate, and are liable if he was liable. If the plaintiff was entitled to recover, either under his contract or under a count for work done and materials furnished, judgment was to be entered for the said sum of $474 and interest ; otherwise, for the defendants. The Superior Court ordered judgment for the defendants; and the plaintiff appealed.