Opinion
March 6, 1959.
John C. Collins, for the defendants.
Sebastian W. Olivo, for the plaintiff.
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.