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• Title: Matthew Cummings Co. v. Grande Et Al.
• Author : Supreme Judicial Court of Massachusetts
• Release Date : January 25, 1933
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 69 KB

Description

WAIT, J. This is a bill of exceptions filed by a claimant in a trustee process in which, on November 29, 1929, John B. Dolan was summoned as one of the trustees named in an action of contract brought by Matthew Cummings Company against Steve Grande. Dolan filed an answer in which he admitted that at the time of the service upon him he held $2,260 due to Grande. The plaintiff on September 10, 1930, recovered a verdict against Grande. On November 21, 1930, Dolan filed, by permission of court, an amended answer in which he stated in substance as follows: About July 10, 1929, he entered into a contract with Grande by which the latter, agreed to do all the brick, mason and tile work on a building for which Dolan was the general contractor. For this work complete Grande was to be paid $11,500, and, as the work progressed, on the tenth or fifteenth of the following month he was to receive eighty-five per cent for the work done in the preceding month. Grande had received this eighty-five per cent at irregular times. On the date of service there was due and payable to Grande $285 and 'there was due absolutely and without any contingency the sum of $1725.00, which sum was not payable however for 61 days.' The fifteen per cent remaining was to be held for a period of sixty-one days after Grande finished his work. 'Grandi continuously kept working down to November 29, 1929 * * * at that time Grandi finished the work under the contract.' The 'trustee knew and believed all the work contracted for by Grandi was complete and finished on this date and the surplus over $1725.00 was due and payable to Grandi.' At a later date on demand of Grande, and by consent of the plaintiff's attorney, he paid Grande $300, leaving, by an account minuted on the check given Grande, a balance of $2,210 of the contract price. Still later the trustee found that a wall which he claimed Grande should have put up had not been done, and, on his insistence, Grande did put up the wall 'during the week or two following the receipt of the last $200.00.' The only other work done by Grande after the service of the writ was some extras for which it was agreed $50 was a fair price. At the date of service 'if the court shall decide that the fair price of the wall was due also then $200.00 more was due and payable.' The trustee on or about May 16, 1930, received notice that one Mucci (the claimant) claimed to be owner of any goods, effects or credits belonging to Grande by assignment of even date. On May 17, 1930, the claimant intervened, setting out that Grande did not finish his contract until January 10, 1930, but between November 29, 1929, and January 10, 1930, expended $1,755.21 for completion, and alleging that on November 29, Dolan had counter claims of $454. He contended that at the time of service there were no funds attachable in Dolan's hands, and that the trustee should be discharged.

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