Evans v. Middlesex County

• Citation: 209 Mass. 474,95 N.E. 897
• Parties: EVANS et al. v. MIDDLESEX COUNTY.
• Decision Date: 05 July 1911
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

209 Mass. 474

95 N.E. 897

EVANS et al. v. MIDDLESEX COUNTY.

Supreme Judicial Court of Massachusetts, Suffolk.

July 5, 1911

COUNSEL

J. A. Brackett, for plaintiffs.

G. L Mayberry, for defendant.

OPINION

RUGG J.

This is an action of contract. The declaration contains five counts only four of which are now material. The first is upon a written contract between the plaintiffs and the defendant, by which the former undertook to erect a power, electric and heating plant for the defendant, and alleged partial performance by the plaintiffs and unreasonable refusal by the defendant to permit them to complete it. The third and fourth counts were for work done and materials supplied, as extras to the contract. The fifth count was upon a quantum meruit for the same work claimed under count one. The answer set up that the contract did not comply with St. 1898, c. 170, or St. 1897, c. 137, and that the work under the contract was not done as required by it to the satisfaction of the architect, who for this reason acting under the contract stopped further performance of it. The case was sent to an auditor, who found the facts in favor of the plaintiffs. It was thereafter tried upon the auditor's report and additional evidence, part of which was oral, before a justice of the superior court, who found generally for the defendant. The case is brought here by the plaintiffs' exceptions to the refusal of the trial court to grant certain rulings.

The contract provided that the work was '(A) * * * to be done and materials furnished under the direction of an engineer selected by the architect and to the satisfaction of the architect and such engineer. And in case of said work or materials * * * shall be unsatisfactory to the said architect, then the said party of the second part shall on being notified thereof in writing by the said architect immediately remove such unsatisfactory work or materials and supply the place thereof with other work and materials satisfactory to the architect. (B) All work contemplated and described by the plans and these specifications and this contract shall be done to the satisfaction of the said architect and engineer * * * and who shall be the sole judges as to the fitness of the work and materials as herein set forth. If any objection is made by the architect or engineer to any work or materials, then the said party of the second part shall remove such unsatisfactory work and materials. (C) And if at any time any of the work mentioned in said specifications is not progressing or any materials are not in accordance with the said specifications to the entire satisfaction of the said architect after five days' notice having been served on the said party of the second part by the said architect, then the said party of the first part shall have the right to enter upon and take possession of said work and remove all materials that are considered by said architect unfit for said work and furnish suitable materials instead therefor.' The trouble arose over the furnishing 'sectional covering * * * air cell, class A,' required by the specifications. The plaintiffs provided a kind of covering, which, they contended, complied with this description, and the architect claimed that it did not, and on refusal by the plaintiffs to substitute he gave the notice to remove the materials, and subsequently to terminate the contract. The auditor found that the covering furnished by the plaintiff was 'air cell sectional covering class A,' and was so known in the trade, and did not find that it was inferior in quality to that demanded by the architect which was manufactured by a particular manufacturer alone, and that the engineer and architect both supposed that the only kind of covering, which would conform to the specification, was that manufactured only by a particular manufacturer. He does not find that this was through corruption, but the inference appears to be that it was through ignorance.

At the trial before the superior court there was some evidence tending to show that the goods furnished by the plaintiffs did not comply with the specification in that class A covering meant a five-ply covering, while that furnished by the plaintiffs was four-ply covering. The weight of the evidence including the auditor's report seems strongly to...