338 Mass. 798

March 6, 1959

Order for judgment affirmed. The defendant, by an oral contract, engaged the plaintiff, a building contractor, to make certain extensive alterations on his property, payment to be made in accordance with biweekly bills computed on a cost plus basis. Upon default in payment, the plaintiff refused to continue with the work, and sues upon the same cause of action in three counts: one under G. L. c. 231, Section 147, for work done and materials furnished, one under G. L. c. 231, Section 7, on an account annexed, and one specifically in quantum meruit. An auditor found the identical sum to be recoverable under each of the three counts. We need not differentiate among them; the defendant having defaulted in payment without justifiable cause, the plaintiff was warranted in refusing to continue the work, Williston on Contracts (Rev. ed.) Section 848, and may maintain an action to recover the fair value of the work done and materials supplied. Fitzgerald v. Allen, 128 Mass. 232 , 234. Ford v. Burchard, 130 Mass. 424 , 426. Monast v. Brodeur, 329 Mass. 767 .


338 Mass. 798

March 9, 1959

Order for judgment affirmed. This is an action of contract for overtime services rendered by the employee to her employer. The case was referred to an auditor whose findings of fact were to be final. He found that the plaintiff was employed at a certain weekly wage and that it was agreed that she might be required to work overtime when the work required but if she did work overtime she would receive an equal amount of time off when the office schedule permitted; that she worked the amount of overtime claimed; that when the defendant denied her requests for time off on account of her overtime he then acted in the best judgment of the existing business requirements of his office; and that he was not attempting "to do her out of time off" to which the plaintiff was entitled as a result of overtime work. The plaintiff voluntarily left her employment. The auditor found for the defendant. The case was heard in the Superior Court on the auditor's report only. There was a finding (in effect an order for judgment) for the defendant from which the plaintiff appealed. We have examined the New York decisions submitted by both parties and fail to find anything indicating that upon the facts found by the auditor a different conclusion should be reached. His ultimate findings are expressed to be based upon all the evidence although subsidiary findings are also set forth. None of these findings is inconsistent with any subsidiary finding

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or with the conclusion reached by him. United States Fid. & Guar. Co. v. English Constr. Co. 303 Mass. 105 . Keefe v. Johnson, 304 Mass. 572 . Union Old Lowell Natl. Bank v. Paine, 318 Mass. 313 .