Boynton v. Lynn Gas Light Co.

• Citation: 124 Mass. 197
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 05 March 1878
• Parties: Lyman Boynton & another v. Lynn Gas Light Company

124 Mass. 197

Lyman Boynton & another v. Lynn Gas Light Company

Supreme Court of Massachusetts

March 5, 1878

Argued November 13, 1877 [Syllabus Material] [Syllabus Material]

Suffolk. Contract on an account annexed for work and labor. At the trial in the Superior Court, before Aldrich, J., it appeared that on July 28, 1870, the plaintiffs, as the parties of the first part, and the defendant, acting by its president, as the party of the second part, entered into the following agreement under seal:

"The said parties of the first part, for the consideration hereinafter mentioned, agree to provide the material for, and forthwith to commence and complete without delay or intermission, except from the necessities of the weather, a substantial stone wharf, to be located upon the harbor commissioners' line, on the harbor side of land owned by said gas light company, at the foot of Shepard Street, in Lynn, there to measure in length two hundred feet; and, upon a dock hereinafter described, there to measure in length three hundred and fifty feet, the wall of said wharf to be twelve feet in thickness at the bottom, four feet at the top and nineteen feet in height, built in a substantial and workmanlike manner, and in accordance with the following specifications. [Then followed the specifications, with a provisions that certain "headers," of a specified size, were "to be distributed throughout the wall, at the discretion of the superintendent of said gas light company, for the purpose of binding the same securely together," "the front of the wall to be battened two feet and four inches, protected by oak pile fenders, not less than one foot in diameter, placed not more than ten feet apart, driven to hard bottom, and secured to the cap-stones by wrought-iron staples, in the usual manner, and furnished with seven oak belaying posts, not less than sixteen inches in diameter, driven to hard bottom, at such places in the wharf as the superintendent shall determine."]

"Also, in addition to the excavation necessary for the above-mentioned wall, to dredge a dock, on the easterly side thereof, and a basin, on the southerly side, -- both to have a uniform depth of six feet, at mean low-water, at all points within seventy-five feet of the face of the wall; and a channel from, and in continuation of said dock, in a direct line to the nearest deep water, the same to be at least forty feet wide at the bottom, to slope at the sides, at an angle of not less than sixty degrees from a perpendicular, and to maintain the same uniform depth of six feet, at mean low-water, throughout its entire length. Any addition to the wall above named, to be paid for at the rate of twenty-four dollars for each running foot, and additional dredging at the rate of sixty cents per cubic yard.

"All the materials taken from the dock, basin and channel to be disposed of by said party of the first part, as follows, namely: To be deposited within the area enclosed by the wall above mentioned, -- the line of the marsh, on the north, -- and a line running from the westerly end of the wall, parallel with the longest side thereof, until the middle point of the area shall be twenty inches above the level of the cap-stones of the wharf, and of a uniform grade. The surplus, if any, to be deposited on the easterly and westerly sides of the dock, upon the flats belonging to the company, inside the harbor commissioners' line, or upon the adjoining marsh, at the option of the company. It being understood and agreed that, after the filling in, and completion of the wharf, and the disposal of material as above specified, any surplus which the company may require to be raised and deposited upon said wharf, shall be paid for at the rate of twenty cents per cubic yard additional.

"And the said party of the first part further agrees to give bonds in the sum of fifteen thousand dollars, with good and sufficient sureties for the full and faithful performance of the above contract, in all its parts.

"And the said party of the second part promises and agrees, in consideration of the fulfilment of the above written contract, to pay to the said party of the first part the sum of thirty-eight thousand two hundred and twenty-five dollars, in the manner following. [Then followed a clause as to the mode of payment.]

It appeared that the plaintiffs built the wall and did the other work specified in the above agreement; and also built an additional wall, did some extra dredging, and, with the material so dredged, filled in the wharf made by the additional wall. For this work they charged the prices named in the agreement for the building and dredging, and, for the filling, twenty cents a yard. This last item was the only one in dispute.

The plaintiffs introduced evidence tending to show that, when the work on the original wall was nearly completed, one Mace, the superintendent referred to in the agreement, and who had charge of the work, came to Lyman Boynton, one of the plaintiffs, and wanted him to extend the wharf; that Boynton said to him that if the defendant proposed to extend the wall further inshore and do the filling behind it, it would be very expensive, compared with the rest of the work, and that they should want more pay for doing it, in addition to what they were getting; that Mace said the defendant must have it done, and would want to fill as far as the wall was built; that he told Mace it would cost considerably more to do it than it would the other, and they must have more; that Mace seemed to think that twenty cents a yard would be enough for it, the same as raising the material for the wharf, if there was a surplus, and that was all the defendant would pay for the additional filling; and that he told Mace he wanted forty cents; that Mace said the wall and dredging were covered by the contract; that he told Mace they would do the wall and dredging at the price named in the contract, and that it was worth forty cents to do the filling; that Mace said he would only pay twenty, and the plaintiffs agreed to do it for that, and went on and did it, in pursuance of this agreement.

There was evidence that the filling of the enlarged part of the wharf was necessary for its proper construction, and that the defendant accepted the work done.

It being admitted that the whole of the disputed item was due if any part of it was, the plaintiff contended that the defendant was liable, under the verbal agreement, upon the evidence, either for the agreed price of twenty cents, if the jury found that Mace was authorized to make such a bargain or upon a quantum...