John Soley & Sons, Inc. v. Jones

• Decision Date: 18 May 1911
• Citation: 95 N.E. 94,208 Mass. 561
• Parties: JOHN SOLEY & SONS, Inc. v. JONES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 561

95 N.E. 94

JOHN SOLEY & SONS, Inc. v. JONES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1911

COUNSEL

Louis L. G. De Rochemont, for plaintiff.

Meehan & Donahue, for defendants.

OPINION

BRALEY J.

It is a general rule that parties cannot be relieved from their contracts fairly made with full knowledge of the facts although they may have mistaken their rights, or failed to have restricted sufficiently their liabilities. Hawkes v Kehoe, 193 Mass. 419, 79 N.E. 766, 10 L. R. A. (N. S.) 125. The defendants knew that by its terms their contract with the transit commissioners could be canceled and discharged, if the engineer gave a certificate that they were not making such progress in the execution of the work as to indicate that it would be completed within the period fixed for performance. It was with this knowledge that they entered into the agreement with the plaintiff as a subordinate contractor to perform part of the work. The impossibility of the defendants' performance of the plaintiff's contract if the contingency arose could have been foreseen and provided for in the instrument. A provision that the promise should be dependent upon the continued existence of the principal contract would have been sufficient to protect the defendants if the plaintiff was compelled to abandon the work, because the contract with the commissioners was terminated. New Haven & Northampton Co. v. Hayden, 107 Mass. 525, 531. It is their contention that, when construed in connection with the circumstances, such a condition appears by implication, or is an unexpressed term of the agreement. Hebb v. Welch, 185 Mass. 335, 336 70 N.E. 440. The plaintiff's contract contained a clause that the work should be performed subject to the directions and to the satisfaction of the commissioners, or of their authorized engineer, and the plaintiff concedes that the amount and character of the work could be ascertained only by resort to the specifications of the main contract. If the principal contract in its entirety had been referred to by appropriate language it would have been incorporated, but it cannot be read into the agreement by implication, where only that part which is germane to the plaintiff's performance may be implied, and the language is unambiguous. De Friest v. Bradley, 192 Mass. 346, 355, 78 N.E. 467; Lipsky v. Heller, 199 Mass. 310, 315, 85 N.E. 453. The auditor, whose finding is not questioned, reports that the plaintiff at the time of execution knew not only of the specifications under which its work must be done, but of the article of cancellation. It apparently acted upon this information, when it ceased work upon having been informed that the right of termination had been exercised. The act of the commissioners, and its decisive effect upon the plaintiff's right to go forward under the contract, having been known to each party, further notice from one to the other of their several rights or demands would have been a vain formality. Cumberland Glass Mfg. Co. v. Wheaton, 208 Mass. 425, 94 N.E. 803.

It is urged that, the possible disability which would prevent performance by the defendants having been known to the plaintiff at the inception of the contract, it was mutually understood that they did not intend to perform, and the plaintiff had no expectation of performance, unless the principal contract remained in force. But while we can construe the contract in writing which the parties made, we cannot make a contract for them. It is only where an unanticipated event happens, which was not in the contemplation of the parties at its inception, and upon which the continued existence of the contract must depend, that upon the happening of the event the contract is dissolved, and the promisor relieved from further performance. Butterfield v. Byron, 153 Mass. 517, 27 N.E. 667, 12 L. R. A. 571, 25 Am. St. Rep. 654; Hawkes v. Kehoe, 193 Mass. 419, 423, 79 N.E. 766, 10 L. R. A. (N. S.) 125; Vickery v. Ritchie, 202 Mass. 247, 251, 88 N.E. 835, 26 L. R. A. (N. S.) 810; Rowe v. Peabody, 207 Mass. 226, 93 N.E. 604; Sun Printing & Publishing Association v. Moore, 183 U.S. 642, 22 S.Ct. 240, 46 L.Ed. 366; Baily v. De Crespigny, L. R. 4 Q. B. 180, 185.

If the...