WILLIAM HERBITS vs. HIGH-SPEED PROCESS PRINTING CORPORATION & others.

HOME CARPET CLEANING COMPANY, INC. vs. HENRY BAKER & another.

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

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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.