1 Mass. App. Ct. 879

February 25, 1974

This bill in equity, brought by a minority stockholder of the defendant High-Speed Process Printing Corporation (High-Speed) alleging various wrongs committed against High-Speed by its remaining stockholders and directors and by other defendants, was filed in the Superior Court on July 27, 1972. The plaintiff appeals from an interlocutory decree sustaining the defendants' plea and from a final decree dismissing the bill. The plea asserted the defense of res judicata, alleging that after the Superior Court had entered a decree after rescript (Herbits v. High-Speed Process Printing Corp. 358 Mass. 817 [1971]) for the same plaintiff, he brought "a Petition for Contempt and a Petition for Enforcement of the final decree against the defendants," which were respectively dismissed and denied by the Superior Court after hearing on June 9, 1972. See St. Martin v. Spinner, 347 Mass. 774 (1964). In the present case the evidence is not reported, no report of material facts was requested and no findings of fact were made by the Superior Court judge. The only question presented upon the record before us is whether the final decree falls within the scope of the pleadings. The entry of that decree imports that the judge found every necessary fact required to support such entry. Abeloff v. Peacard, 272 Mass. 56, 59 (1930). Commissioner of Ins. v. Commonwealth Mut. Liab. Ins. Co. 297 Mass. 219 (1937). Albano v. North Adams Hoosac Sav. Bank, 361 Mass. 892 (1972).

Interlocutory decree affirmed.

Final decree affirmed with costs of appeal


1 Mass. App. Ct. 879

February 27, 1974

Home Carpet Cleaning Company, Inc. (Home), brought this action of contract with counts on an express contract and in quantum meruit to recover for services performed and material supplied to Henry Baker (Baker) for cleaning, repairing and replacing rugs

Page 880

damaged by the bursting of a hot water pipe in Baker's apartment. Identical counts were brought against Liberty Mutual Insurance Company (Liberty), the insurer of the installer of the pipe. The District Court judge found for the plaintiff against each defendant on the counts in quantum meruit and found for the defendants on the the counts on express contract. The Appellate Division affirmed the finding against Baker, reversed the finding against Liberty and ordered entry of judgment for the latter. No appeal was taken by Home from the order with respect to Liberty; so only Baker's appeal from the finding against him is before us. (The appeal was transferred to us under G. L. c. 211A, Section 12.) In order to recover in quantum meruit it must appear that the work was performed under circumstances warranting a finding that the plaintiff expected that the defendant would pay for the work, that the defendant acted with that expectation and that the defendant allowed the plaintiff so to act without objection. Albert v. Boston Mortgage Bond Co. 237 Mass. 118, 121 (1921). From a review of the evidence, including exhibits, contained in the judge's consolidated report to the Appellate Division, we are satisfied that the evidence did not, as matter of law, warrant a finding for Home. Treating the order of the Appellate Division as a dismissal of the report, that order is reversed. The finding for the plaintiff is vacated and judgment is to be entered for the defendant Baker.

So ordered.