O'Connor v. Varney
Massachusetts Supreme Judicial Court
Action of contract to recover damages for Varney’s failure to build certain additions to a house according to the terms of a written contract between the parties.
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Action of contract to recover damages for Varney’s failure to build certain additions to a house according to the terms of a written contract between the parties. Answer, a judgment recovered by O’Connor in an action brought by Varney against him on that contract to recover the price therein agreed to be paid for the work, in defence of which O’Connor relied on the same nonperformance by Varney, and in which an auditor to whom the case was referred, and upon whose report that judgment was rendered, found that Varney was not entitled to recover under the agreement, by reason of the work having…
1Opinion of the CourtShaw, C. J.
The presiding judge rightly ruled that the former judgment was a bar to this action. A party against whom an action is brought on a contract has two modes of defending himself. He may allege specific breaches of the contract declared upon, and rely on them in defence. But if he intends to claim, by way .of damages for nonperformance of the contract, more than the amount for which he is sued, he must-not rely on the contract in defence, but must bring a cross action, and apply to the court to have the cases continued so that the executions may be set off. He cannot use the same defence, first…
2Cited by1 opinion
- Musco v. LupiNew York Supreme Court · 1957