Pyburn v. Fishery Products, Inc.
Pyburn v. Fishery Products, Inc.
Opinion of the Court
The plaintiff, Thomas Pyburn, instituted suit to enforce a lien under G. L. c. 254, §§ 5 and 11, for work performed under an oral contract with subcontractor Ross-con Corporation (Rosscon). The case was referred to a mas
The defendants Martin and Rosscon entered into a written contract on August 8, 1973, under which the subcontractor Rosscon was to perform excavation and grading work on a building site.
The master then found that Martin committed a breach of that agreement on March 15 but concluded that the agreement did not “creat[e] any liability on the part of [Martin] to Pyburn,” or “includfe] any promise by [Martin] to pay the charges made by Pyburn to Rosscon for the work performed by Pyburn up to November 2, 1973.” We think the judge erred in not sustaining Pyburn’s specific objections to these general findings.
When a master’s report “‘shows upon its face all the subsidiary facts which the master . . . had in mind and upon which he based his . . . [general findings], . . . we are in no way bound by . . . [his general findings], and we must take these subsidiary findings together with the inferences that ought to be drawn from them and reach our own conclusion.’” Bills v. Nunno, 4 Mass. App. Ct. 279, 283-284 (1976), quoting from O’Brien v. Dwight, 363 Mass. 256, 281-282 (1973), and cases cited. Wormstead v. Town Manager of Saugus, 366 Mass. 659, 660 (1975). McNamara v. Westview Bldg. Corp., 4 Mass. App. Ct. 670, 671 (1976). Lemieux v. Rex Leather Finkhing Corp., 7 Mass. App. Ct. 417, 418 (1979). D. Federico Co. v. New Bedford Redev. Authy., 9 Mass. App. Ct. 141, 142 (1980). By the orders of reference, the master
As to the master’s general finding that the March 6 agreement did not include a promise by Martin to pay the charges made by Pyburn to Rosscon for the work performed by Pyburn up to November 2, 1973, we find irresistible the conclusion that such a promise was made. We think this case is related to Massachusetts decisions allowing recovery for an oral promise to pay the debt of another, when the essence of the agreement containing such promise is to obtain a pecuniary benefit by the promisor from the promisee, and when such promise is merely incidental to obtaining that benefit. Hayes v. Guy, 348 Mass. 754, 756 (1965), citing Colpitts v.
Here Martin’s essential object was not to satisfy Rosscon’s obligation, but to secure the direct pecuniary benefits of Tyburn’s removal of the lien and assistance in completing the project. See Hayes v. Guy, supra; Merrill v. Kirkland Constr. Co., 365 Mass. 110 (1974); Laurence Albre Associates, Inc. v. Italian Catholic Cemetery Assn., 9 Mass. App. Ct. 922 (1980). Contrast Howard L. Baker Co. v. Meledones, 352 Mass. 485 (1967); M.J. Pirolli & Sons v. Mass. Equip. & Supply Corp., 9 Mass. App. Ct. 863 (1980). It follows that the breach by Martin in discharging Rosscon
The portion of the judgment dismissing count two of the plaintiffs complaint is reversed, and a corresponding new portion of that judgment is to be entered against the defendant Richard Martin Development Company in the amount of $9,580; the judgment is otherwise affirmed.
So ordered.
The case was referred and heard with the related case of Rosscon Corp. v. Martin R. Dunn & others (Superior Court, Essex County, No. 21572 Eq. [1974]), which concerns us only in so far as subsidiary findings and exhibits in that case were incorporated by reference in the master’s report of the case before us.
The defendant Fishery Products, Inc., was the owner of the lot of land on which the building was to be erected. The defendant Boston Five Cents Savings Bank was the mortgagee of record of the property.
This figure was later adjusted to $9,580.
Since Martin did not plead the Statute of Frauds in its answer, and as it does not appear that the statute was relied on during the hearing before the master, we regard the statute as having been waived as a defense. Rozene v. Sverid, 4 Mass. App. Ct. 461, 465 (1976), and cases cited. Therefore, it is not necessary for us to decide, and we do not decide, whether the omission of the method of payment term from the written memorandum of March 6 was sufficient to bring the Statute of Frauds into play.
“The expected advantage [to the promisor] must be such as to justify the conclusion that his main purpose in making the promise is to advance his own interests. Facts such as the following tend to indicate such a main purpose when there is an expected pecuniary or business advantage: prior default, inability or repudiation of the principal obligor; forbearance of the creditor to enforce a lien on property in which the promisor has an interest or which he intends to use; equivalence between the value of the benefit and the amount promised; lack of participation by the principal obligor in the making of the surety’s promise; a larger transaction to which the suretyship is incidental.” Restatement (Second) Contracts § 116, Comment b (1981). Section 116 appeared in Restatement (Second) of Contracts (Tent. Draft No. 4, 1968) as § 184. See also Illustration 3.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.