Bloom, South & Gurney, Inc. v. Mitchell
| Decision Date | 01 February 1935 |
| Citation | 194 N.E. 114,289 Mass. 376 |
| Parties | BLOOM, SOUTH & GURNEY, Inc., v. MITCHELL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Suffolk County; F. B Greenhalge, Judge.
Action of contract by Bloom, South & Gurney, Inc., against Clement C. Mitchell. Finding for the plaintiff in the sum of $7,523.82 by the trial judge following the report of an auditor, and the defendant brings exceptions.
Exceptions overruled.
D. J. Triggs, of Boston, and J. D. O'Connell, of Marlboro, for plaintiff.
S. Macmillan and L. L. Wadsworth, Jr., both of Boston, for defendant.
The plaintiff, a subcontractor, brings this action of contract against the contractor who, in 1924 and 1925, built a large apartment hotel in Brookline, called Alden Park Manor. The substance of the claim now material is that the failure of the defendant to heat the building caused the plaintiff additional expense for labor and cement in laying cork floors.
The auditor, whose findings of fact by agreement were final, allowed the plaintiff $3,132 for additional labor and $2,028.25 for additional cement. The written contract as orally modified required ‘ that the building shall be kept heated if work is done under this contract during cold weather.’ This provision, we think, required a degree of heat adapted to the doing of the contemplated work, so as to provide the ‘ reasonable working conditions' to which the plaintiff was entitled by the contract. The master found that the heat was inadequate, and the judge adopted his conclusions.
The defendant contends that the count upon an account annexed will not support a judgment for extra labor and materials in the absence of a contract to pay for them, and that damages for breach of the provision for heat in the written contract as orally modified cannot be awarded under that count. Egan v. Massachusetts Bonding & Ins. Co., 266 Mass. 270, 273, 165 N.E. 386. One answer is, that there was also a count for breach of the written contract as orally modified. Besides, the auditor found that ‘ it was understood that the increased expense which the plaintiff incurred from the lack of sufficient heat would be adjusted after the job was completed.’ A contract to pay for such expense might be found, even though the auditor felt unable to ‘ find any definite or positive agreement as to what this adjustment was to be or upon what basis the added expense from this cause was to be computed.’
The defendant contends that the proper measure of damages was not the extra cost of doing the work with insufficient heat, but merely what it would have cost the plaintiff to supply the heat required. The latter doubtless would have been the measure of damages for breach of the contract to furnish heat if the plaintiff could have minimized its loss by supplying the needed heat. McCormick v. Stowell, 138 Mass 431; P. J. W. Moodie Lumber Co. v. A. W. Banister Co., 286 Mass. 424, 427, 190 N.E. 727. But it appears from the auditor's report that the...
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