Creamery Package Mfg. Co. v. Russell

Decision Date04 January 1911
Citation78 A. 718,84 Vt. 80
PartiesCREAMERY PACKAGE MFG. CO. v. RUSSELL et al.
CourtVermont Supreme Court

Exceptions from Rutland County Court; Alfred A. Hall, Judge.

Action by the Creamery Package Manufacturing Company against James E. Russell, defendant, and Joseph Prenevost, trustee. There was a judgment for plaintiff, and exceptions to the report of a commissioner appointed to take the disclosure of the trustee were overruled and the trustee brings exceptions. Affirmed as to principal defendant, and judgment against trustee reversed and rendered.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Lawrence, Lawrence & Stafford, for plaintiff.

Thomas W. Moloney, for trustee.

ROWELL, C. J. The defendant contracted in writing with the trustee to provide the material and commence the construction of a house for the trustee on his lot in West Rutland by such a time, and to complete it in a workmanlike manner by such another time, according to the specifications therein contained and a plan signed by the parties and made a part thereof. By the specifications the cellar was to be dug by the defendant, and the cellar wall was to be so high, and 2 feet wide at the bottom and 18 or 20 inches at the top, properly laid, and plastered on both sides. The underpinning was to be laid 18 inches high above the cellar will, and finished in mortar. The price for the whole work was $1,500, payable in installments as the work progressed, but the entirety of the contract was not thereby severed and the price apportioned to the different parts of the work, but the whole price remained as the consideration for complete performance by the defendant. When the cellar was dug and a dry wall started, the trustee's attention was called to the wet, sandy, and clayey condition of the soil; and, after the character and condition of the soil had been considered by him and the defendant and the mason doing the work, he inquired of the mason if a dry wall pointed on both sides with mortar would stand to hold the building, and on being told that it would not on that soil, and that a foundation of grouting or cement would have to be constructed and the cellar wall laid in cement, he directed the defendant to build the wall so it would stand regardless of cost, whereupon the defendant, acting under that direction, made a grout foundation for the cellar wall at an increased expense of $45, for which the trustee was charged below. This was error, for both parties accepted as true what the mason said, and so it must be taken as true, and, being thus taken, it appears that the wall called for by the contract would not have held the building on that soil. It was therefore the duty of the defendant under the contract, which was not waived nor modified in this respect, to make the foundation he did, and without extra compensation, for he was bound by implication to do...

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7 cases
  • Walsh Const. Co. v. City of Cleveland
    • United States
    • U.S. District Court — Northern District of Ohio
    • November 12, 1920
    ... ... 373; Dermott v. Jones, 2 Wall ... 1, 17 L.Ed. 762; Creamery Package Co. v ... Russell, 84 Vt. 80, 78 A. 718, 32 L.R.A. (N.S.) 135; ... Sutherland on Damages, Sec. 699; ... Stillwell Mfg. Co. v. Phelps, 130 U.S. 520, 9 ... Sup.Ct. 601, 32 L.Ed. 1035; Gleason ... ...
  • Udo Peist v. C. M. Richmond
    • United States
    • Vermont Supreme Court
    • October 3, 1923
    ... ... This is ... sufficiently shown by Creamery Package Mfg. Co. v ... Russell, 84 Vt. 80, 78 A. 718, 32 L. R. A. (N ... ...
  • Freeport Texas Co. v. Houston & B.V. Ry. Co.
    • United States
    • U.S. District Court — Southern District of Texas
    • March 20, 1919
    ... ... 876, 22 L.R.A. (N.S.) 364, 130 Am.St.Rep ... 803; Creamery Package Co. v. Russell, 84 Vt. 80, 78 ... A. 718, 32 L.R.A. (N.S.) 135; ... ...
  • Peist v. Richmond
    • United States
    • Vermont Supreme Court
    • October 3, 1923
    ...by the fact that the price for the work is payable in installments. This is sufficiently shown by Creamery Package Mfg. Co. v. Russell, 84 Vt. 80, 78 Atl. 718, 32 L. R. A. (N. S.) 135. There, as here, the contract called for the construction of a completed building for a fixed price, payabl......
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