Howard v. Harvard Congregational Soc.
| Citation | 112 N.E. 233,223 Mass. 562 |
| Parties | HOWARD et al. v. HARVARD CONGREGATIONAL SOC. |
| Decision Date | 18 April 1916 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; Frederick Lawton, Judge.
Action by Thomas Howard and others against the Harvard Congregational Society. From a judgment for plaintiffs, defendant appeals. Affirmed.
Thos. C. Bachelder and Alpheus Sanford, both of Boston, for appellant.
Carver & Carver, of Boston, for appellees.
This is an action brought to recover a balance which the plaintiffs claim to be due upon a building contract, and presents the question, whether the removal from the cellar, of a ledge of rock which was not discovered until the cellar had been partly excavated, was required to be done by the plaintiffs under the specifications, which are a part of the contract.
The specifications, so far as material to this question, provide as follows:
‘Excavations.
-6? below top of present underpinning adjacent to new building.
‘Retain sufficient quantity of the loam and grade about new building 6? deep.
‘Remove all other excavations from the premises.
‘Level cellar bottom ready for concrete.’
It is to be noted, that the material to be excavated by the contractors is limited to ‘soil, earth and stones.’ These words as used in this contract do not include a ledge of solid rock. The minute reference to ‘soil, earth and stones,’ words which have a somewhat definite significance in common understanding, excludes the large mass or ridge of rock usually referred to as ledge.
Under artice VIIII of the contract, it is provided in part as follows:
‘The owner agrees to provide all labor and materials essential to the conduct of this work not included in this contract in such manner as not to delay its progress, and in the event of failure so to do, thereby causing loss to the contractors, agrees that it will reimburse the contractors for such loss.’
The removal of the ledge made necessary in excavating for the cellar, was a labor that the defendant was required to perform under artice VIII.
It is agreed by the parties that:
It is further agreed that whatever the architect did in the premises, he acted in good faith, and that no written order for the excavation of the ledge was given by him.
The jury found in answer to questions submitted, that the plaintiffs did not have knowledge of the existence of the ledge at the time of the making of the contract; that they could have discovered its existence at that time by a reasonable examination of the premises; and that the architect decided that the excavation of the ledge was an extra which the plaintiffs were not required by the contract to perform.
It is also agreed:
‘That at the time of the removal of the ledge, the defendant had actual knowledge that the same was being excavated by the plaintiffs, and although the members of the building committee of the defendant ...
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...we think that waiver of par. Fifth, if it is applicable at all to work not covered by the subcontract (see Howard v. Harvard Congregational Soc., 223 Mass. 562, 565, 112 N.E. 233; Farm-Rite Implement Co. v. Fenestra, Inc., 340 Mass. 276, 287, 163 N.E.2d 285), should be The subcontract, alth......
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Baccari v. B. Perini & Sons, Inc.
...for the extra work caused by the defendant laying macadam over the roadway in which the edgestones were set. Howard v. Harvard Congregational Society, 223 Mass. 562, 112 N.E. 233. Although the contract provided that the plaintiff was to do all the digging, there was evidence of a usage that......
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Miller v. Housing Authority of New Orleans
...Co., 175 App.Div. 177, 161 N.Y.S. 549; Pittsburg Filter Manufacturing Co. v. Smith, 176 Ky. 554, 196 S.W. 150; Howard v. Harvard Cong. Soc., 223 Mass. 562, 112 N.E. 233.14 See LSA-Civil Code Articles 2207 and 2208.15 'The prolongation of the terms granted to the principal debtor without the......
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United States v. Blauner Const. Co.
...one, and the court cannot relieve them from the bargain which they saw fit to make." And in the case of Howard v. Harvard Congregational Society, 223 Mass. 562, 564, 112 N.E. 233, the court stated, in allowing recovery on an excavation contract limited to certain types of material, that a c......
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INTERNATIONAL COMMERCIAL ARBITRATION AND MULTI-NATIONAL CORPORATIONS PRACTICAL APPROACHES TO ARBITRATION THE HEARING: THE ROLES OF ARBITRAL PANEL AND COUNSEL
...that precisely define the scope of work were construed to exclude all work not included as in Howard v. Harvard Congregational Society 112 NE 233 (Man 1916). The contract required the excavator to "remove all soil, earth and stones" to a specified depth in order to permit construction of th......