ELIAS M. LOEW vs. ARMANDO DENARO.

ELIAS M. LOEW vs. ARMANDO DENARO.

362 Mass. 863

June 5, 1972

The plaintiff seeks specific performance of an alleged oral partnership with respect to a restaurant and an accounting of receipts and expenditures in connection with the restaurant. The case was referred to a master, who found on evidence not reported that there was no agreement of partnership and found the net amount due from the defendant to the plaintiff to be the sum of $160.74. The plaintiff appeals from an interlocutory decree confirming the master's report and from a final decree ordering the defendant to pay the amount due. The master found that in the expectation of reaching an agreement the plaintiff donated the services of employees of a corporation controlled by him to what was believed a common cause, that he caused $1,119.04 to be expended for materials for the benefit of the defendant and was indebted to the corporation for that amount, and that he and his employees charged food and liquor to the account of the corporation in the amount of $958.30. We affirm. Contrary to the plaintiff's contention, the master's findings are not inconsistent, contradictory or plainly wrong. See Smigliani v. Smigliani, 358 Mass. 84 , 89. In the absence of an agreement or understanding that there would be payment if the negotiations were unsuccessful, the plaintiff cannot recover for services rendered on his own initiative in anticipation of a binding contract. Graham v. Oman, 358 Mass. 369 , 373. If there was error in charging the plaintiff with an amount

Page 864

owed by his corporation, there was a greater offsetting error in crediting him with an amount owed to his corporation.

Interlocutory decree affirmed.

Final decree affirmed with costs of appeal.