Bartlett v. Stanchfield

• Decision Date: 05 January 1889
• Citation: 19 N.E. 549,148 Mass. 394
• Parties: BARTLETT v. STANCHFIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 394

19 N.E. 549

BARTLETT v. STANCHFIELD.

Supreme Judicial Court of Massachusetts, Suffolk.

January 5, 1889

COUNSEL

Morse &

Allen, for plaintiff.

B Wadleigh, for defendant.

OPINION

HOLMES J.

The only question presented by the exceptions concerns the defendant's liability for extra work and materials furnished in connection with a house which the plaintiff had been building for the defendant under a written contract. The contract contained the following clause "And it is further agreed that should the owner, during the progress of said construction, request any alteration of addition to, deviation from, or omissions concerning, the construction of said houses, as set forth herein, and in said plans and specifications, the same shall be made by the said Bartlett, and shall in no way affect this agreement, but shall be added or deducted from the amount thereof, by a fair and reasonable valuation; and that no charge shall be made for extra work or materials, unless the same is ordered in writing, and the price thereof agreed upon." The plaintiff's evidence was that the blind drains--one item in question--were put in during the progress of the work, and that the defendant promised to pay for them; and that the other items--picture moldings, covers for trays, and shelves--were furnished at the defendant's oral request, "after the completion of the house in conformity to the written contract." The evidence was objected to, and the court was asked to rule that, as the work and materials were not ordered in writing, and no price was agreed upon, the plaintiff could not recover. To this it might be enough to answer that, except as to the drains, there was evidence that the work was done after the contract had been performed, and independent of it. But, under the instructions of the court, the jury probably found that the terms of the written contract, if applicable, had been waived, and that the items had been furnished under a substituted oral contract.

The main argument for the defendant is that, if the work fell within the provisions of the contract, there was no evidence of a waiver. We are of opinion that there was evidence for the jury. Attempts of parties to tie up by contract their freedom of dealing with each other are futile. The contract is a fact to be taken into account in interpreting the subsequent conduct of the plaintiff and defendant, no doubt. But it cannot be assumed,...