Barton v. Morin

• Decision Date: 29 November 1932
• Parties: BARTON v. MORIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 98

183 N.E. 170

BARTON

v.MORIN.

Supreme Judicial Court of Massachusetts, Berkshire.

Nov. 29, 1932.

Exceptions from Superior Court, Berkshire County; W. A. Burns, Judge.

Action by Elizabeth Barton against Arthur C. Morin. Judgment in favor of plaintiff, and defendant brings exceptions.

Exceptions overruled.

H. L. Harrington, of Adams, for plaintiff.

W. J. Donovan, of Adams, for defendant.

WAIT, J.

The plaintiff sues in contract for damages arising out of the failure of the defendant to perform fully his contract to build a house upon her land according to the terms and specifications of their written contract. The judge, who tried the case without a jury, found that in certain respects the contract had not been complied with and awarded damages to the plaintiff. There was evidence that, when the house was ready for occupation, the plaintiff moved into it, and, after ten days' residence, paid to the defendant the full balance claimed by him to be due under the contract. She and an agent for her had inspected the structure as the work progressed. At the time of final payment she insisted that the defendant sign the following statement written on the receipted bill: ‘This house is complete with the exception of concrete wall to be finished outside as soon as weather permits; that all windows and doors shall be made to fit right. And that all wood in house that is full of checks or cracks shall be replaced on or before May 30, 1930, and to take care of plaster on basement if it falls off.’ The defendant so signed on receiving the payment. Some of the defects for which claim in damages was made were then plainly to be seen. Others were not then apparent on inspection. There was dispute whether the defects noted in the memorandum on the bill had been made good before the trial.

The judge refused to grant the following request for ruling: ‘As a matter of law the plaintiff, by a payment of the contract price after the completion of work which she had personally inspected, must be deemed to have waived any obvious defects therein.’ The defendant excepted, and by his bill of exceptions raises the single issue whether there was error in the refusal.

Whatever the rule may be with reference to a waiver by acceptance of articles of personal property manufactured for one under a contract, or by payment or part payment for them, which we need not discuss, we take the law in this Commonwealth to be clearly settled that neither use and occupation nor payment in whole or part as matter of law waives the right of the owner to obtain damages for failure to comply fully with the terms of a contract to build a structure upon that owner's land. Buttrick Lumber Co. v. Collins, 202 Mass. 413, 419, 420, 89 N. E. 138;Handy v. Bliss, 204 Mass. 513, 521, 90 N. E. 864,134 Am. St. Rep. 673;Gray v. James, 128 Mass. 110;Id., 126 Mass. 110;Gillis v. Cobe, 177 Mass. 584, 590, 59 N. E. 455. Compare Glazer v. Schwartz, 276 Mass. 54, 176 N. E. 613, where possession had been taken. They are significant events which taken with other circumstances may establish that the owner by his conduct has so...