98 N.E. 697 (Mass. 1912)
- The court found that if not fully performed the entire contract price although payable in monthly installments never became due, or if before completion the assignor by reason of his inability to go on, voluntarily abandoned the work, he could not recover for work and labor already performed and furnished.
- It consequently was a question of fact upon all the evidence for the presiding judge before whom the case was tried without a jury, to decide, whether upon facing the exigencies of changed conditions the parties mutually agreed to a cancellation, and thereupon in good faith an independent contract was substituted, by the terms of which the assignee undertook to furnish sufficient funds to pay the workmen the wages then due, and their future wages as they accrued, while the assignor was to receive a weekly salary for his personal services of supervision.
- The refusal to comply with the assignor's requests for findings, and the general finding for the assignee manifestly showed his conclusion to have been, that the first contract was treated as having been rescinded, and the assignor had no enforceable claim against the assignee under the assignment.
The assignor's requests for rulings in so far as they were not given were rightly refused, and the exceptions were overruled.
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