Gillis v. Cobe

• Decision Date: 27 February 1901
• Citation: 59 N.E. 455,177 Mass. 584
• Parties: GILLIS et al. v. COBE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 Mass. 584

59 N.E. 455

GILLIS et al. v. COBE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1901

COUNSEL

M. F. Farrell, for plaintiffs.

Edward I. Baker, for defendants.

OPINION

LORING J.

1. The first question submitted to the court by the referee is whether the defendants' act of putting in the tanks constituted an act of acceptance which dispensed with the necessity of the plaintiffs furnishing the architect's certificate. The plaintiffs contend that this question does not arise in this case, because it is nowhere provided in the contract that their right to recover the contract price depends upon their securing a certificate from the architect. Though the provisions of this contract are not as explicit as building contracts usually are in this respect, yet, on a fair construction of its terms, we think that the plaintiffs' right to recover does depend upon their producing a certificate from the architect. In the specifications, which are made part of the contract, there is this provision: 'Payments only to be made upon a written order from the architect as the work progresses. No order will be considered an acceptance of the work on which it is given. Only an order for the final payment shall be considered as an acceptance of the work.' This clause taken in connection with the two following clauses of the contract, must be taken to make the payment of the contract price dependent upon the architect's giving his certificate: 'Any disagreeement between the owners and the contractor upon any matter arising from these specifications or drawings of the work required shall be decided by the engineers and architects, whose decision shall be final and binding on both parties.' 'All payments shall be made upon written certificate of the engineers and architects.' We are therefore of opinion that this question does arise. Further, we are of opinion that the acts of the defendants in using the building when the plaintiffs stopped working on it were not an acceptance of it. By the express terms of the contract, 'only an order for the final payment shall be considered as an acceptance of the work.' The building became the defendants' property, as it was affixed to their land. When the plaintiffs stopped working on it, and the architect refused to give a certificate that it was constructed in accordance with the requirements of the contract, the defendants were not bound to remove the building; nor were they bound, so long as the building stood on their land, to abstain from using what was their own. The use of the building, therefore, was not an acceptance of it under the contract; nor was it an acceptance of it apart from the contract, for the purpose of a recovery, under the rule of Hayward v. Leonard, 7 Pick. 181. There is no question of acceptance in case of a recovery on that ground. That rule depends upon other considerations.

2. The second question is whether a recovery can be had in this case on the common counts, without furnishing the architect's certificate. In the contract which they have made, the parties did not go so far as to negative any recovery by the contractors in case the architect refused to give his certificate. In the absence of such a negative stipulation in the contract, the failure to secure the architect's certificate cannot be a bar to the plaintiff's right to recover on the principle of Hayward v. Leonard, if they are otherwise entitled to recover on that ground. Fitzgerald v. Allen, 128 Mass. 232; Atkins v. Barnstable Co., 97 Mass. 428; Reed v. Inhabitants of Scituate, 7 Allen, 141, 144; Id., 5 Allen, 120; Walker v. Inhabitants of Orange, 16 Gray, 193; Snow v. Inhabitants of Ware, 13 Metc. 42. It is not necessary to determine whether the rule enforced in Hayward v. Leonard rests on general principles of justice, or is derived by construction from the fact that there was no intention to render the services gratuitously.

3. The third question submitted by the referee is whether the plaintiffs can recover on the doctrine of Hayward v. Leonard, on the facts found by him in the award. It is contended on behalf of the plaintiffs that the referee has not reported this question to the court. The referee concludes his award with the following statement: 'If the court is of opinion that this action can be maintained on the foregoing statement, then I find and report that the defendants owe the plaintiffs the sum of 1,066 (one thousand and sixty-six) dollars.' The plaintiffs contend that this is nothing more than a reference to the two questions of law which by the preceding paragraph were referred to this court. But that would not be a fair construction of these words had they stood alone, and they cannot be construed as if they stood alone; for, if nothing more than that had been intended by the referee, there could have been no reason for the extended statement of facts contained in the award. Though the statement of facts in an award is not of itself enough to hold that all questions of law arising on those facts are submitted to the court (Rogers v. Mayer, 151 Mass. 279, 23 N.E. 836), yet, on a fair construction of this award as a whole, we are of opinion that the referee submitted to the court the question of the plaintiffs' right to recover on the common counts on the facts found by him. See Fairchild v. Adams, 11 Cush. 549, 555.

The plaintiffs' second contention in this connection is that the following findings of the referee entitle them to a recovery on the common counts: (1) 'The evidence shows that plaintiffs have performed the work and furnished the materials required by plans and specifications, except that they have failed to put in any of the iron rods, except one, which, by plans and specifications, were to be furnished and put in by plaintiffs, running from side to side of the building and across corners, through concrete, and the one they did put in was placed under and not through concrete.' (2) 'I find on the third and fourth counts, both on quantummeruit, that plaintiffs have performed the work and furnished materials in construction of the building called for by contract in good faith, and that they are of value to the defendants, * * * and that such work and materials are of value of $1,266.' These findings cannot be taken, on any fair construction of the award, to be a finding that the plaintiffs complied with the contract in the construction of the building in all particulars except in putting in the rods. There is a specific finding in the award to the effect that the plaintiffs did not prove that they complied with the contract requirements in laying the cinder filling on which the concrete floor which gave way and sank when put into use was to and does rest. This finding is as follows: 'I am, on the evidence, unable to determine to what this sinking of the floor is chargeable,--whether to insufficient tamping or ramming and wetting of the cinder filling, which plaintiffs were required to do by contract, or to the spongy, swampy condition of the soil (foundation for the cinder filling), for which the plaintiffs are not chargeable.' This specific finding cannot be taken to have been annulled by the general findings. These general findings must be taken to amount to nothing more than a finding that the building was erected by the plaintiffs, and erected in good faith.

The plaintiffs further contend that they are entitled to the fair value of the structure, viewed with reference to the labor and materials which produced it, and that when they have proved the vlaue of their labor and materials in the usual way, according to general rules, they are entitled to that amount, unless the defendants go forward and prove by way of recoupment that the plaintiffs have committed a breach of their contract, that they (the defendants) have suffered damages therefrom, and what the amount of those damages is. Where a contractor does work and furnishes materials under a special contract, he has no right to recover the value of the work plus the value of the materials under a quantum meruit, but is limited to the right to be paid for them specified in the contract. No suit can be maintained by him on the common counts until the contract is fully performed, and then only to recover the contract price. Peirce v. Fellows, 1 Dane, Abr. 222; Lovell v Earle, 127 Mass. 546. If he resorts to a recovery under the rule in Hayward v. Leonard, because, being in default in the performance of the contract, or, what is the same thing, because, being unable to prove that he did perform the contract, he has no rights under it, he has not the same right to recover for the value of the work done and materials furnished by him that a person has who has done work and furnished materials as he had been requested to do. In the latter case it is immaterial whether the result of his work is of any value to the defendant or not. Austin v. Foster, 9 Pick. 341; Stowe v. Buttrick, 125 Mass. 449; Angus v. Scully, 176 Mass. 357, 57 N.E. 674, 49 L. R. A. 562. But one who has done work under a special contract, and resorts to a recovery under the principle of Hayward v. Leonard, recovers on the ground, and only on the ground, that the result of his work is of some benefit to the defendant. He comes into court admitting that he has not done what he agreed to do, and that he cannot hold the defendant on his promise to pay him the contract price. More than that, he admits that the part which he has failed to perform is one that so far goes to the essence of the contract that it is a condition precedent to a recovery by him on the contract; for, if the part which he agreed to perform and did not perform was of slight importance, it is not a condition precedent. He can recover the contract price...