Gagnon v. Ainsworth

• Decision Date: 30 June 1933
• Citation: 186 N.E. 498,283 Mass. 488
• Parties: GAGNON v. AINSWORTH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 488

186 N.E. 498

GAGNON

v.AINSWORTH et al.

Supreme Judicial Court of Massachusetts, Bristol.

June 30, 1933.

Appeal from Superior Court, Bristol County; Joseph Walsh, Judge.

Suit by Oscar J. Gagnon against Herbert Ainsworth and another. From an order directing entry of judgment for plaintiff on auditor's report, defendants appeal.

Judgment on first count for plaintiff, if declaration is amended to conform to proof, otherwise for defendants on such count, and judgment to be entered for plaintiff on second count of declaration.W. M. Sullivan and A. S. Sherwin, both of Fall River, for appellants.

J. E. Lajoie, of Fall River, for appellee.

DONAHUE, Justice.

The plaintiff who made a written contract with the defendants for the erection of a house on their land in Fall River has brought suit seeking to recover under the first count of the declaration the unpaid balance of the contract price and under the second count for extra labor and materials furnished. The case was heard by an auditor whose findings of fact where, by the terms of the order of reference, made final. Manning v. Woodlawn Corp., 239 Mass. 5, 9, 131 N. E. 287;Merrimac Chemical Co. v. Moore, 279 Mass. 147, 181 N. E. 219. The auditor found for the plaintiff on each count of the declaration and a judge of the Superior Court ordered the entry of judgment for the plaintiff on the auditor's report from which order the defendants have appealed.

1. The contract provided that the walls of the building should be constructed of cinder blocks and that the width of the foundation walls should be nine inches. After work on the foundation had begun the inspector of buildings of the city ordered the plaintiff to increase the width of the foundation walls to twelve inches. The parties thereupon discussed the cost of constructing the foundation walls with a width of twelve inches and the defendants agreed to pay the plaintiff a fair charge for the extra work and materialrequired by the change. The foundation walls built by the plaintiff were twelve inches wide. The building when constructed was inspected and approved by the inspector of buildings. The building code of the city of Fall River provides that the width of foundations of buildings constructed of wood shall be sixteen inches and of buildings constructed of brick eighteen inches. It contains no provision as to the width of the foundations of buildings constructed of cinder blocks, which material the auditor found was heavier than wood and lighter than brick. The defendants contend that the plaintiff cannot recover because the contract called for a width of foundation wall which was illegal. While acts prohibited and penalized by building laws are illegal and a contract for the performance of such acts is not enforceable, Eastern Expanded Metal Co. v. Webb Granite & Construction Co., 195 Mass. 356, 81 N. E. 251,11 Ann. Cas. 631, no such case is here presented. A building law ‘being penal in nature and in derogation of common right, is not to be enlarged beyond its plain import, and as a general rule is strictly construed.’ Commonwealth v. Hayden, 211 Mass. 296, 297, 97 N. E. 783, 784. We cannot write into the building code a provision which its framers did not see fit to put there. The...