MACALISTER v. THOMAS, 5 Mass. App. Ct. 798 (1977)

360 N.E.2d 1072

Appeals Court of Massachusetts.
March 22, 1977.

The contention of the defendant (Thomas) that the recovery by the plaintiff, MacAlister (the builder), in his action for breach of a construction contract should be offset by the value of various elements of damage to Thomas, evidence of which the trial judge excluded (or in the alternative that Thomas should be given a new trial at which the value of those elements could be introduced), was vitiated by the jury’s verdicts on the builder’s claims and on Thomas’ counterclaim for breach of the same contract. (See Mass.R.Civ.P. 13, 365 Mass. 758 [1974].) The jury found for the builder on his claim for breach of contract (as well as on a quantum meruit); similarly, the jury found for the builder on Thomas’ counterclaim (rather than for Thomas in a nominal amount; see White Spot Constr. Corp. v. Jet Spray Cooler, Inc. 344 Mass. 632, 636 [1962]; Three-Seventy Leasing Corp. v. Ampex Corp. 528 F.2d 993, 998 [5th Cir. 1976]). Thus, the jury having found that there was no breach of contract by the builder, Thomas was not entitled to damages in any amount; and the exclusion of the offered testimony became immaterial.

Judgment affirmed.

Wendy S. Harrison for the defendant.

William P. DeCarolis, for the plaintiff, submitted a brief.