Boston Furnace Co. v. Dimock

• Decision Date: 03 April 1893
• Citation: 33 N.E. 647,158 Mass. 552
• Parties: BOSTON FURNACE CO. v. DIMOCK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 552

33 N.E. 647

BOSTON FURNACE CO. v. DIMOCK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 3, 1893

From the bill of exceptions it appears that the issue submitted to the jury was as follows: "Did the plaintiff furnish labor and materials as alleged, or any part thereof, which were used in the erection of buildings on the premises described in the petition, and were such labor and materials of such character, and furnished under such a contract, that a lien may be maintained therefor?" Plaintiff introduced evidence tending to show that in 1890 the defendant Dimock was engaged in building, on the premises referred to, a block of apartment houses, 4 stories high containing 16 suites. That on said premises, on April 21 1890, after some preliminary conversation, he made an oral agreement with the plaintiff, through its agent, Becket, by which the plaintiff was to furnish 16 No. 7 Hot Closet Cyclone ranges, with hot water front, together with zinc pipes, and couplings, to be set up at said premises by the plaintiff, complete, for the plumber to make connections with the hot-water boiler, and for which he agreed to pay $19 a piece, or $304 in all, and that Becket on the same day reported the order to the manager of the plaintiff company. That these ranges were known in the trade as portable cooking ranges with hot-water fronts, and were intended to be set upon the zinc which was to be laid on the floor. Each range was to be connected with the chimney by a pipe or funnel, and the pipes from the hot-water boiler which was connected with the water supply of the house, were to be coupled by a plumber to the range where the hot-water front was, inside the range, next to the fire. The water heated by the range was distributed from the hot-water boiler by pipes to sink, bath tub, and wash bowls, each suite being fitted in this manner. At the time this contract was made Dimock had not seen the ranges, but he had been shown a photograph of one, and they had been described to him. At this time only two stories of the houses had been completed. Becket testified: "Dimock was to let us know when he was ready for them to be placed. I told him that we would like to have him come in and look them over. He said he probably would before he was ready. It was optional on his part to come in and look at them." Dimock testified: "I told him I would give him $19 for that range he showed me. I said I would give him $19 if they were what he represented. That was the price settled upon. These ranges were to be sent out and put up when we got ready for them. I was to go and see the range, and I went and seen it; and it was what they represented, so I told them to send it. This was in October, 1890, and was the first time I had seen these ranges." It further appeared that the ranges were sent out and set up by plaintiff, as agreed; that the last lot left plaintiff's rooms November 11, 1890, with the zinc, pipes, and couplings, and accompanied by a man to set them up. The plumber, who had no connection with the petitioners, subsequently connected the range of each suite with the hot-water pipes and tank belonging to that...