Gray v. James

• Citation: 128 Mass. 110
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Decision Date: 10 January 1880
• Parties: F. E. Gray v. William James & another

128 Mass. 110

F. E. Gray v. William James & another

Supreme Court of Massachusetts

January 10, 1880

Argued September 24, 1879 [Syllabus Material]

Hampden. Contract upon two orders one dated July 12, 1875 and the other September 13, 1875, drawn on the defendants by John O'Flaherty, payable to the plaintiff "from percentage retained on work on Episcopal Church," and accepted, on March 28, 1876, by the defendants, "payable when the work is accepted by the church." After the former decision, reported 126 Mass. 110, the case was tried in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows:

The plaintiff put in evidence tending to show that Charles L. Shaw had a contract for building an episcopal church in Springfield; that the defendants contracted with Shaw for the masonwork and materials; and O'Flaherty contracted with the defendants for the performance of part of their work; that the work covered by the defendants' contract, as well as by O'Flaherty's, had progressed to the completion of the church except the tower, which was built to about two thirds its height, when, on December 3, 1875, it was ascertained that the tower was defective, and thereupon the work on it was suspended; that a short time afterwards, the tower being deemed unsafe, the church society caused it to be taken down, and took possession and disposed of the materials; that the taking down of the tower as far as deemed necessary was completed about January 3, 1876, and it had since remained in the condition in which it was then left, except that, in finishing the church for occupancy, it was roofed over; that before the acceptance of the orders the completion of the tower had been abandoned by the mutual consent of all parties; that no steps had been taken after the defect was discovered, either by the defendants or the society, for the further prosecution of the work, at the time the orders were accepted or since, nor has any request been made therefor.

It was also in evidence that the work done by O'Flaherty, which was left after the tower was taken down, estimated at contract price, was about $ 9000; that if the spire had been completed, O'Flaherty's contract would have amounted to about $ 12,000; and that O'Flaherty had been paid about 80 per cent. for all the work done by him, from month to month, as the work progressed; and that if O'Flaherty was liable for the defects in the tower, he had been fully paid all he would be entitled to under the contract.

When the defect in the tower was discovered, a question arose as to who was responsible for the defect, it being in dispute whether it resulted from poor material, improper workmanship or a defect in the plan. The plaintiff's evidence tended to show that the materials furnished and the workmanship were in accordance with the plans and specifications; that as the work progressed they were from time to time approved by the architect and were satisfactory to the superintendent appointed by the church, and fully up to the terms of the contract. The defendants offered evidence to the contrary. The plaintiff conceded, however, that the church society had contended that the work upon the tower was not properly done, and not according to the contract, and had withheld from the contractor, who had withheld from the defendants a sum amounting to about $ 6000, on account of said alleged defect, which sum has been ever since withheld and never has been paid. The plaintiff also offered evidence tending to show that, after the abandonment of the work upon the tower, the rest of the church was completed by the contractor; that he was paid therefor, except the amount withheld as aforesaid, which was about the same as the amount due from the defendants estimated at contract price at the time work upon the tower was stopped;...