H.D. Foss & Co. v. Whidden

• Decision Date: 01 December 1925
• Citation: 149 N.E. 679,254 Mass. 146
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: H. D. FOSS & CO., Inc., v. WHIDDEN et al.

254 Mass. 146

149 N.E. 679

H. D. FOSS & CO., Inc.,

v.WHIDDEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 1, 1925.

Appeal from Superior Court, Suffolk County; Morton, Judge.

Suit in equity by H. D. Foss & Co., Inc., against Benton Whidden and others, to recover under contract to construct building on land of defendant named, to be leased to plaintiff. Decree was entered for plaintiff on master's report for damages to date of suit, and, after amendment was allowed to original bill, final decree was directed for plaintiff, with interest from date thereof, and plaintiff and defendant Whidden appeal. Decree modified, and, as modified, affirmed.

A. P. Stone, of Boston, for plaintiff appellant.

D. F. Carpenter, of Boston, for defendants.

CARROLL, J.

The defendant Whidden (hereinafter spoken of as the defendant) owned a lot of land adjoining in the rear the plaintiff's place of business. On April 14, 1913, the defendant and plaintiff entered into a written contract covering the construction of a building on the defendant's land, and on December 17, 1913, the building at that time being nearly finished, the parties executed a lease in the form contemplated by the written contract. The plaintiff entered into possession of the property under the lease before the first of the year. The building was completed in January, 1914. The suit in equity is to recover under this contract.

The written contract, after reciting the intention of the defendant to erect a building upon the above-mentioned lot, provided, that upon its completion, the defendant was to lease the building to the plaintiff for the term of ten years, the lease to be in the form attached to the contract; that the lessor was to construct the new building according to plans and specifications identified by the signatures of the parties, the obligation of the lessor being confined to the plans and specifications. In the specifications there was this provision:

‘Waterproofing. Wall and floor of basement and coal pocket under Friend street sidewalk, all pits and trenches, and the floor of driveway are to be waterproofed with cement waterproofing and the waterproofing is to be guaranteed for ten years and a bond furnished to the owner for the proper and sufficient guaranteeing of this waterproofing cement.

‘Concrete. * * * Boiler room, basement floor, floor of pits, etc., must be reinforced if necessary to resist the upward pressure.

‘Finish. * * * In the basement the cement waterproofing will form the finish.’

The section of Boston where the building in question is located originally was a part of the bay or harbor, which has been artificially filled, and the soil, particularly at high tide, is filled with water, especially in the spring and autumn, when the pressure of the water is very strong. When the lease was executed and when possession was taken under it by the plaintiff, the basement of the building was dry. The concrete, at that time, was in the process of being finished, and there was nothing to indicate that the floors and walls were not waterproof and sufficiently strong to resist the pressure of the water. Some time prior to this, when the basement floors were being laid, the plaintiff's superintendent noticed that a two-inch slab of concrete was being laid and that no reinforcement was put in, and called this to the attention of the defendant, stating that he feared trouble from water because of this construction. The defendant replied: ‘* * * There would be no water in the basement.’ It did not appear that any change was thereafter made in the thickness of the floors or in the method of laying them.

In the spring of 1914 water was in the basement. It began by oozing through the cement floors; then the upward pressure caused cracks in the floor, and substantial quantities of water came in through these cracks and at other points in the basement. It appeared that as a result of the condition of the soil due to the fact that for many years several large stables were in the vicinity, this water carried an offensive odor. Frequent complaints were made by the plaintiff, but the condition was not remedied until 1920, when the plaintiff relaid the floors in the basement and refinished the cement. By reason of the pressure of water in the basement, the greater part of it became useless for storage purposes and the plaintiff's property was damaged. In August, 1916, the parties agreed that the plaintiff might make the basement water-tight without prejudice to its rights.

The master found that the floors were not constructed of materials that were water-tight ‘or of sufficient strength to resist the pressure of the water.’ The plaintiff sought relief in damages on the ground that the defendant had not performed his original contract. A decree was entered for the plaintiff for the damages it sustained to the date of the suit. Upon the plaintiff amending its bill with a prayer for damages sustained after the filing of the original bill, a final decree was recorded directing the defendant to pay the plaintiff the sum of $9,450, with interest from the date of the decree, and costs. The plaintiff and defendant appealed.

We will first consider the defendant's appeal. He contendsthat he has not broken the contract; that the floor was constructed in accordance with the plans and specifications; that this was all the defendant was required to do; and that he was not called upon to make the basement water-tight.

The specifications stipulated that the basement floor and other parts of the premises ‘are to be waterproofed with cement waterproofing, * * * the waterproofing is to be guaranteed for ten years,’ and a bond furnished ‘for the proper and sufficient guaranteeing of this waterproofing cement’; under the heading:

‘Concrete. * * * Boiler room,...