Danforth v. Freeman

• Decision Date: 17 March 1899
• Citation: 43 A. 621,69 N.H. 466
• Court: New Hampshire Supreme Court
• Parties: DANFORTH et al. v. FREEMAN.

43 A. 621

69 N.H. 466

DANFORTH et al.

v. FREEMAN.

Supreme Court of New Hampshire. Merrimack.

March 17, 1899.

Action by Danforth, Forrest & Morgan against Leverett N. Freeman on contract. On findings by referee, case discharged.

Albin, Martin & Howe, for plaintiffs.

Matthews & Sawyer, for defendant.

PARSONS, J. This is an action to recover the balance due upon the contract price for building a house, with sundry claims for extra work. The case has been heard by a referee, who states the account between the parties, in which he allows the plaintiffs the contract price and sundry items of extra labor and material, in all $3,234.58, and allows the defendant sundry cash payments and items for failure to comply with the terms of the contract, amounting to $2,923.35, and finds due the plaintiffs $311.23. The questions reserved upon the referee's report are as to the meaning of the clause in the contract relating to hardware, the allowance made by him for defective painting, and the rule of damages for the plaintiffs' failure to comply with some parts of the specifications.

Upon the first question, the specifications under the head of "hardware," contain the following: "Allow $45 for hardware. This does not include nails, lead, zinc, window and other fasts, or ordinary builder's hardware, which are to be furnished by contractor. Carpenter is to fix all hardware." The contract has not been furnished us, but from the course of the argument we understand that the contract was to build a house for the defendant at a fixed price and according to certain specifications. The plaintiffs, in their statement of the account, charge the defendant, in addition to the contract price, with certain articles of hardware, and credit him with the allowance of $45; that is, the plaintiffs claim the cost of certain articles of hardware in addition to the contract price. The defendant admits he was to pay for all hardware in excess of $45, except that which the clause under discussion provided the contractor should furnish, namely, nails, lead, zinc, window and other fasts, or ordinary builder's hardware. As the parties had apparently the same understanding of the general effect of the clause, the only possible ground of difference perceived is as to what particular articles were to be paid for out of the allowance of $45, and what were to be furnished by the contractor. The term "ordinary builder's hardware" may have a signification in the building trades designating particular articles of hardware. Whatever it includes the contractor was to pay for. If there was dispute upon this question, the report presents no question for our determination; for there is nothing before us upon which to base any opinion as to what articles are covered by the term "ordinary builder's hardware," and the referee's finding that hardware not included in the exception, of the value of $55.40, was furnished, cannot be questioned. As provided in the report, including the items admitted by the defendant, there should be allowed on the item of hardware $13.42, instead of $39.46.

The painting was not done in a workmanlike manner, nor as required by the contract. It is found there was no agreement to vary the contract, but that the defendant knew that the work was not being done by the subcontractor as provided in the specifications, and failed to make objections to the contractor in time to stop the work; and on that ground the referee ruled the defendant was not entitled to full damages, and allowed $50 damages. Whether there was a waiver of strict compliance with any part of the specifications was a question of fact. Puller v. Brown, 67 N. H. 188, 34 Atl. 463. Knowledge by the defendant of the variation from the specification, and his failure to object, was evidence from which his assent thereto and waiver of the right to object might be found. Bailey v. Woods, 17 N. H. 365. An assent by the owner to variation from the contract, found from his knowledge and silence as the work progressed, would have the same effect in releasing the contractor as an express agreement A finding of such knowledge and assent, and consequent estoppel, is not inconsistent with the finding that no agreement to vary was proved. If the agreement to vary had been proved, the question of waiver would not have arisen. The report appears to mean that for the unskillful work and variance to which the defendant did not assent, and as to which he is not thereby now estopped to object, $50 is awarded as damages; but, as the parties do not agree upon the construction of the report, if either party desires, the report may at the trial term be recommitted to the referee, with instructions to report the damages, if any, to the defendant from the unskillful work and variation from the contract in the painting to which he did...