329 Mass. 767

November 25, 1952

Decree affirmed with costs of the appeal. In June, 1948, the plaintiff entered into a written contract with the defendant Brodeur (hereinafter called the defendant) by which he agreed, at a fixed sum per house, to furnish the labor involved in the construction of several houses that the defendant was erecting. Thereafter considerable work was done by the plaintiff, but before the houses were finished the defendant terminated the agreement and engaged another contractor to complete them. One of the objects of this bill in equity -- and the only one that need concern us -- is to recover, on the basis of quantum meruit, a balance alleged to be due for the work performed. The defendant's answer included a counterclaim by which he seeks damages for alleged improper workmanship on the part of the plaintiff. A decree was entered awarding damages to the plaintiff in the sum of $1,500 and dismissing the defendant's counterclaim. The defendant appealed. The judge made findings of fact, and the evidence is reported. There was no error. The judge found that the defendant terminated the contract before completion without justification. In these circumstances the plaintiff may recover the fair value of his services. Fitzgerald v. Allen, 128 Mass. 232. Dalton v. American Ammonia Co. 236 Mass. 105, 107-108. The question of the amount of recovery was one of fact. The judge also found that the defendant had failed to establish any basis for recovery under his counterclaim. The findings, which are based mainly on oral testimony and are not plainly wrong, must stand. Berry v. Kyes, 304 Mass. 56, 57-58. We have considered the defendant's exceptions to rulings on evidence and find them lacking in merit. Most of them arose from the exclusion of questions put by the defendant in his case in chief and were not accompanied by offers of proof. Commonwealth v. Farrell, 322 Mass. 606, 623.


329 Mass. 767

November 26, 1952

Decree affirmed. The single member found, and on review his findings were affirmed by the board of review of the Industrial Accident Board, that "the employee wished to ride the motorcycle [involved in the accident] for his own enjoyment; that he incurred a risk not contemplated by his employment and that his injury did not arise out of his employment." This was a finding of fact. It has been settled by decisions of this court too numerous to mention that findings of fact established by the single member and confirmed by the board on review will not be disturbed if there is any evidence to support them. Here the evidence was sufficient. Karelis's Case, 328 Mass. 224. "An injury does not arise out of the employment when it results from the assumption of a risk not incidental to or connected with such employment." Mailloux's Case, 328 Mass. 592, 594.


329 Mass. 767

December 1, 1952

Decree affirmed. There was evidence that the employee, while working for his employer, contracted pneumonia and tuberculosis by inhaling dust which came from rags and paper that he handled. The single member and the reviewing board found and ruled that the employee had not sustained the burden of proving that the employee's incapacity to work was causally related to an injury arising out of and in the course of his employment. The Superior Court dismissed the claim for compensation. The statement of the single member, stated above, was a finding

Page 768

of fact, and not a ruling that such a finding was compulsory. Roney's Case, 316 Mass. 732, 734. Since the board could refuse to believe any of the evidence (Roney's Case, supra), there was no error in that finding, and the decree dismissing the claim must be affirmed.