C.&R. Const. Co. v. City of Boston

• Decision Date: 26 November 1930
• Citation: 173 N.E. 517,273 Mass. 280
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: C. & R. CONST. CO. v. CITY OF BOSTON.

273 Mass. 280

173 N.E. 517

C. & R. CONST. CO.

v.CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 26, 1930.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by C. & R. Construction Company against the City of Boston. The trial judge directed verdict in set-off for city against plaintiff, and plaintiff brings exceptions.

Exceptions sustained.

J. J. Donahue and C. J. Redmond, both of Boston, for plaintiff.

H. M. Pakulski, Ass't Corp. Counsel, of Boston, for defendant.

WAIT, J.

The plaintiff, which will hereinafter be called the company, on March 28, 1929, brought an action at law against the city of Boston, hereinafter called the city, to recover a balance due under a contract made in October, 1926, and completed July 19, 1928, for work upon Beacon Street, in Boston. The city admitted its liability therefor. The city declared in set-off for the amount paid in settlement of an execution issued upon a judgment entered in December, 1926, upon a verdict against it in favor of one Roewer, recovered by Roewer for damages sustained by him on August 17, 1924, arising out of a defect in Bowker Street, Boston. The company admitted that said suit was brought, and that a verdict was returned against the city in the amount named.

There was evidence that the company in 1924 did certain work for the city in Bowker Street under a contract which inter alia provided that it would indemnify and hold the city harmless ‘against, all claims for damages to persons or property occasioned by, or resulting from, blasting or other methods or processes in the work of construction, whether such damages be attributable to negligence of the Contractor or his employees or otherwise’; and which required the company to refill its trench and, after refilling and replacing paving, to maintain it ‘in such a condition that traffic may be carried on over the same with safety.’ There was evidence tending to show that Roewer was injured in consequence of a defective condition in the paving near the refilled trench, although certain testimony, if believed, would prove that no such defect existed at the time of his injury. There was evidence that the city had made final payment to the company under the 1924 contract, which provided that ‘any balance found as provided in this article [which dealt with payments] shall be deemed the final settlement under the contract.’ Such payment, however, was not a bar to the city's claim for damage resulting from negligence of the...