Home M. J. PIROLLI & SONS, INC. vs. MASS. EQUIPMENT & SUPPLY CORP.

9 Mass. App. Ct. 863

March 7, 1980

1. The only question raised by the appeal is whether the plaintiff, a supplier of building materials, is barred by the provisions of G. L. c. 259, Section 1, Second, from recovering from the defendant, the owner of and general contractor on a construction project, on the defendant's oral promise concerning payment for various materials which the plaintiff had delivered to the original masonry subcontractor on the project prior to the latter's insolvency and replacement by another subcontractor. None of the materials in question had been delivered to, at the request of, or on the credit of the defendant. See and compare Nelson v. Boynton, 3 Met. 396 , 400 (1841). Contrast Stone v. Walker, 13 Gray 613 , 615 (1859); Irving Tanning Co. v. Shir, 295 Mass. 380 , 382-383 (1936); Merrill v. Kirkland Constr. Co., 365 Mass. 110 , 113, 115 (1974). The words repeatedly employed by the defendant's vice president ("I'll see that you get paid") are usually construed as the type of promise which falls within the statute. See Nelson v. Boynton, 3 Met. at 400; Stone v. Walker, 13 Gray at 615-616; Collins v. Abrams, 276 Mass. 106 , 107 (1931); Hayes v. Guy, 348 Mass. 754 , 757 (1965). Contrast Restatement (Second) of Contracts Section 184, Comment b, Illustration 3 (Tent. Draft No. 4, 1968). "The basic question is one of determining whether this case `falls within a class of cases in which the essence of the transaction is . . . the obtaining of some . . . benefit, by the promisor from the promisee, and the payment of the continuing debt of a third person in accordance with the promise is merely incidental and not the real object of the transaction.'" Hayes v. Guy, 348 Mass. at 756, quoting from Colpitts v. L. C. Fisher Co., 289 Mass. 232 , 234 (1935). It is not enough to take the case out of the statute that some benefit result to the defendant from his promise (Ames v. Foster, 106 Mass. 400 , 403 [1871]); the benefit must be both direct and pecuniary in nature. Nelson v. Boynton, 3 Met. at 402. Hayes v. Guy, 348 Mass.at 756. Merrill v. Kirkland Constr. Co., 365 Mass. at 115. Here, the plaintiff had no lien on the defendant's property (see and compare Nelson v. Boynton, 3 Met. at 403; Ames v. Foster, 106 Mass. at 402; Colpitts v. L. C. Fisher Co., 289 Mass. at 235, 236; Kalker v. Bailen, 290 Mass. 202 , 206 [1935]) and did not relinquish its claim (on which it has recovered judgment) against the original masonry subcontractor. See Nelson v. Boynton, 3 Met. at 403; Ames v. Foster, 106 Mass. at 402; Brightman v. Hicks, 108 Mass. 246 , 247 (1871); Gill v. Herrick, 111 Mass. 501 , 503 (1873); Collins v. Abrams, 276 Mass. at 107; Colpitts v. L. C. Fisher Co., 289 Mass. at 234. Contrast Kalker v. Bailen, 290 Mass. at 205. On the record, the only ascertainable benefit to the defendant arose from the fact that the plaintiff continued to supply materials (for which it was paid) to the second subcontractor. But that supposed benefit had to be assessed in light of the master's subsidiary findings that all those materials were "ordinary" and that they or their equivalents were all obtainable from other suppliers. There is nothing in the subsidiary findings which warranted an

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inference that "the real object of the transaction was the obtaining of a pecuniary benefit to the promisor" (Merrill v. Kirkland Constr. Co., 365 Mass. at 115), and we concur in the judge's conclusion that "the facts and circumstances were not such that the case falls within the so-called `leading purpose' exception to the Statute of Frauds . . . referred to in Hayes v. Guy, 348 Mass. 754 [1965]." 2. It does not appear that the plaintiff ever questioned the "Non-Jury Action" order of reference to the master. If the plaintiff wished to preserve its jury claim, it should have registered an objection (Mass.R.Civ.P. 46, 365 Mass. 811 [1974]) at the time of the hearing on the motions addressed to the master's report, as was done in Star Sales & Distrib. Corp. v. A.B.C. Drywall Co., 6 Mass. App. Ct. 866 (1978), and Johnson v. Post Motors, Inc., 7 Mass. App. Ct. 857 (1979). We do not consider the question now. John B. Deary, Inc. v. Crane, 4 Mass. App. Ct. 719 , 724 (1976).

Judgment affirmed.