Derby Desk Co. v. Conners Bros. Const. Co.
| Decision Date | 07 January 1910 |
| Citation | 204 Mass. 461,90 N.E. 543 |
| Parties | DERBY DESK CO. v. CONNERS BROS. CONST. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Freedom Hutchinson and Albert S. Hutchinson, for plaintiff.
F. W. & S.E. Qua, for defendant.
The certificate of the architects was property excluded. In the adjustment of differences, as the work progressed, the decision of the architects as to the quantity and quality of the work within the true meaning of the drawings and specifications is to be final. But they were not empowered to act as arbitrators, whose decision as to the interpretation of the contract, made nearly a year after the date of the writ should be a condition precedent to the right of the plaintiff to bring suit. White v. Abbott, 188 Mass. 99, 74 N.E. 305; Norcross Brothers Co. v. Vose, 199 Mass 81, 94, 85 N.E. 468, and cases cited; Bauer v International Waste Co., 201 Mass. 197, 203, 87 N.E. 637. The amended declaration is for the balance due under the contract, which is alleged to have been fully performed. The amended answer, while containing an itemized statement of deductions, including the cost of furnishing and putting in place of the iron frames, with a claim in recoupment, does not plead an adjustment of the matters in issue by arbitration, or decision of the architects. It is well settled that an award or settlement must be pleaded, or it is not admissible in bar of the suit. Parker v. Lowell, 11 Gray, 353, 358. Furthermore by the written stipulation of the parties filed in the case, it was expressly agreed that the plaintiff was entitled to the full amount unless the defendant was allowed the expense of providing and setting the frames.
It is not disputed that all the woodwork contracted for by the plaintiff has been provided, and in the present controversy the only questions are whether the plaintiff became bound to furnish iron frames for ten of the large windows and for two of the large exterior doors. The answer depends upon the interpretation which should be given to the words 'window frames' and 'door frames' found in the contract. The only expression, separate from the specifications, which seems to indicate the nature of the materials, appears after the clause relating to the stationary furniture, which the plaintiff also was to furnish, set and complete ready for use. If by implication there is ground for construing the words 'all other woodwork' as referring to the preceding window and door frames and sash, or they appear to be meaningless, the defendant insists that the material of the items in dispute was to be of iron. The first paragraph of the contract not having expressly defined the kind of material to be used, resort must be had to the specifications. But as only one set of specifications and drawings had been prepared covering in detail the construction and completion of the building, the defendant, when making subordinate contracts, used by reference that part where the work to be done and materials to be furnished by the under contractor were described. The parties having agreed that the several specifications relating to the architectural iron, general iron work, marble work and carpenter's work shown by the record are the specifications material to the decision of the case, they are to be treated as those referred to in the plaintiff's contract, and considered as if annexed to the instrument. Bergin v. Williams, 138 Mass. 544; White v. McLaren, 151 Mass. 553, 24 N.E. 911; Norwood v. Lathrop, 178 Mass. 208, 59 N.E. 650; Lipsky v. Heller, 199 Mass. 310, 85 N.E. 453. If descriptions calling for exterior window and door frames of iron are there found under the titles 'architectural iron' and 'general iron work,' where it is said that this heading is intended to include 'all cast and wrought iron work not included under structural steel, and architectural iron work as herein specified to complete the building in accordance with the drawings, and the complete specifications of which this is a part,' we find under the title of 'carpenter's work,' these words, 'This contractor shall furnish and set up all the window frames,' the materials of which for the portions not exposed to the weather 'shall be kiln-dried, and free from sap, shakes, large knots or any defect that would impair its durability,' and 'the exterior door frames on the first floor are to be of cast iron,' but 'all other door frames are to be of rebated pine plank.' Ordinarily 'carpenter's work' of itself does not cover the furnishing of iron door frames, and the architect, to whose evidence no exception was taken, testified that while the expression, 'the exterior iron doors on the first floor are to be of cast iron,' appears, yet the contractor for the woodwork would not be obliged to put them in, as the reference was only intended to indicate that these frames were not included.
The defendant contends that...
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