156 N.E.2d 682
Supreme Judicial Court of Massachusetts.
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, § 147, for work done and materials furnished, one under G.L.c. 231, § 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.) § 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.
John C. Collins, for the defendants.
Sebastian W. Olivo, for the plaintiff.