Long v. Inhabitants of Athol

Decision Date26 November 1907
Citation82 N.E. 665,196 Mass. 497
PartiesLONG et al. v. INHABITANTS OF ATHOL.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Whipple Sears & Ogden and Alexander Lincoln, for plaintiffs.

Herbert Parker and Frederick H. Nash, for defendants.

OPINION

SHELDON J.

The defendants appealed from the interlocutory order overruling their demurrer to the bill, and their counsel have discussed some of the questions naturally arising thereon. As however all these questions are raised, and perhaps more advantageously for the defendants, upon the master's report and the exceptions thereto, and as the appeal has not been specifically argued, it need not be considered at any great length. We think it plain that the bill as amended sets forth a good cause of action. It is drawn with a double aspect, seeking to obtain a rescission of the contract of the plaintiffs with the defendants, first upon the ground that it was fraudulently obtained from the plaintiffs by giving to them as a basis for the proposed contract erroneous estimates of the work to be done, which largely understated the amount thereof, and keeping from the files of the town clerk of Athol and concealing from the plaintiffs the maps, drawings profiles and specifications in accordance with which the contract was to be and in fact was made; and secondly upon the ground that the contract was made under a mutual mistake of both parties arising from the fact that the estimates upon which the plaintiffs made their bid and upon the faith of which they entered into the contract, which estimates were made by an engineer employed by the defendants for that purpose, and were given to the plaintiffs by the defendants as correct, were erroneous and materially underestimated the amount of the work to be done. If the proof came up to the averments of the bill on either of these grounds it would entitle the plaintiffs to relief. It would be enough if either of the grounds claimed were made out. Redgrave v Hurd, 20 Ch. D. 1; Davies London & Provincial Ins. Co., 8 Ch. D. 469; Newbiggin v. Adam, 34 Ch. D. 582; Trail v. Baring, 4 De G., J. & S. 316, affirming s. c. 4 Giff. 485; Rawlins v. Wickham, 3 De G. & J. 304; Daniel v. Mitchell, 1 Story (U. S.) 172, Fed. Cas. No. 3,562; Goodwin v. Massachusetts Loan & Trust Co., 152 Mass. 189, 25 N.E. 100; Motherway v. Wall, 168 Mass. 333, 47 N.E. 135; Keene v. Demelman, 172 Mass. 17, 51 N.E. 188; Boles v. Merrill, 173 Mass. 491, 53 N.E. 894, 73 Am. St. Rep. 308; Paine v. Upton, 87 N.Y. 327, 41 Am. Rep. 371; Winnipisseogee Lake Co. v. Perley, 46 N.H. 83. The bill could be maintained both for a rescission of the contract and for the recovery of whatever money might be incidentally necessary to afford full relief. Rackemann v. Riverbank Improvement Co., 167 Mass. 1, 44 N.E. 990, 57 Am. St. Rep. 427; Davis v. Peabody, 170 Mass. 397, 49 N.E. 750; Weeks v. Currier, 172 Mass. 53, 51 N.E. 416; Franklin v. Greene, 2 Allen, 519. Nor does the bill show upon its face that the plaintiffs had such means of ascertaining the real facts or were guilty of such gross negligence in relation thereto as to deprive them of the right to relief for this reason. Conner v. Welch, 51 Wis. 431, 8 N.W. 260. The statement of Jessel, M. R., upon this subject in Redgrave v. Hurd, 20 Ch. D. 1, was quoted and followed in Smith v. Land & House Property Co., 28 Ch. D. 7, 17, and in Karberg's Case, [1892] 3 Ch. 1, 13. Nor does the bill show that the plaintiffs were guilty of such laches as to lose their right to relief. Their right to rescission depended upon the refusal of the defendant to correct the mistake, so far as the bill rested upon that ground (Keene v. Demelman, 172 Mass. 17, 23, 51 N.E. 188); and the bill seems to have been brought promptly after the discovery of the mistake and the defendant's refusal to rectify it ( Rawlins v. Wickham, 3 De G. & J. 304). It does not appear by the bill that the defendants cannot as to all essential matters be put substantially into their original position under the rule of Thayer v. Turner, 8 Metc. 550, and Snow v. Alley, 144 Mass. 546, 11 N.E. 764, 59 Am. Rep. 119. See Drohan v. Lake Shore & Michigan Southern Railroad, 162 Mass. 435, 38 N.E. 1116; Rackemann v. Riverbank Improvement Co., 167 Mass. 1, 4, 5, 44 N.E. 990, 57 Am. St. Rep. 427. We cannot doubt that the demurrer was rightly overruled. The cases which hold that without a rescission of the contract the plaintiffs would be held to performance in conformity to its terms and could not set up the antecedent error are beside the point, and need not be considered.

It sufficiently appears by the master's report that, although no fraud was practiced upon the plaintiffs, their claim that the contract was entered into under a mutual mistake caused by the error of the engineer employed by the defendants to make the estimate that was furnished by the defendants to the plaintiffs and other contractors for them to base bids upon, was proved. The plaintiffs had access also to correct profile maps and drawings and to printed specifications; and it would have been possible for a skilled engineer, by correctly scaling these plans, to ascertain and correct the mistakes made in the estimate furnished by the defendant to the plaintiffs and other bidders. It is manifest however and, as we understand, is not disputed, that the mistakes could have been discovered only by one skilled in such matters, and only by careful and accurate scaling and processes of computation. The master has found that the defendants acted in good faith in furnishing this estimate, and believed that the information given therein was at least approximately correct, and were ignorant that any material errors had been made in compiling it; that the mistakes made were unintentional and that all parties were ignorant of any serious discrepancies in the estimate, but that the plaintiffs were not grossly negligent in not examining the plans more minutely, and had the right to assume that the engineer's estimate was at least approximately correct, and to rely thereon in making up and submitting their bids. He has also found that the statements of this estimate were not even approximately correct; that the amount of excavation required of the plaintiffs was so much in excess of that shown by the erroneous estimate that the plaintiffs were justified in fact in refusing to proceed further with their contract.

Upon these findings taken by themselves, under the circumstances which appear here, it is manifest, upon the cases already referred to, that the plaintiffs are entitled to the relief which they seek, unless this should be refused to them by reason of some of the specific objections of the defendants, or unless it should appear, upon some of their exceptions, that there has been material error on the part of the master; and we proceed to consider these questions.

The defendants contend that there was no right of rescission by reason of the issuing of the paper containing the inaccurate estimates, because this was put forth in good faith; its inaccuracy was unknown and unsuspected by the defendants until after plaintiffs had begun their work; and because the plaintiffs in their contract expressly covenanted to do the work 'in strict accordance with the maps, drawings, profiles and specifications prepared therefor and on file in the office of the town clerk, * * * all of which are to be considered as part and parcel of these presents, and to be construed therewith,' and further in the same contract in express terms admitted and agreed 'that the amounts and quantities of materials * * * and work * * *as stated in the notice to bidders, governing the making of proposals for said work, are approximate only,' and that they were satisfied therewith in determining the prices for doing the work required by the contract, and that they had judged for themselves as to all conditions affecting the cost of performance of the work. And the defendants contend that the plaintiffs, after having made these express stipulations, cannot now upon discovery of the mistake which was common to them and the defendants, claim that the contract was represented to them to be an agreement to do the work according merely to the erroneous estimate. Sullivan v. Sing Sing, 122 N.Y. 389, 25 N.E. 366; Williams v. Daiker, 33 Misc. 70, 68 N.Y.S. 348. Certainly, the plaintiffs cannot make such a claim. As long as the contract remains in force they are bound by its provisions. Stuart v. Cambridge, 125 Mass. 102; Lentilhon v. New York, 102 A.D. 548, 92 N.Y.S. 897. But the equitable right to rescind an agreement which has been entered into upon a mutual mistake as to material facts, knowledge of which would have prevented the parties from making it, is not to be defeated by reason merely of the stringency of the covenants which it contains. We have found nothing in the New York decisions already referred to inconsistent with this position. If, as the defendants contend on the authority of Weeks v. Trinity Church, 56 A.D. 195, 67 N.Y.S. 670, and Gearty v. Mayor of New York, 171 N.Y. 61, 63 N.E. 804, they could be construed as denying such a right of rescission, we should not be willing to follow them.

It is claimed also that the agreement should not be rescinded by reason of this mistake, because it is not to be treated as a mistake of fact. The paper it is claimed was given to the plaintiffs merely as an estimate. The defendants, though believing it to be accurate, did not attempt to pass off their belief as knowledge. Chatham Furnace Co. v Moffatt, 147 Mass. 403, 18 N.E. 168, 9 Am. St. Rep. 727. They did nothing to prevent a full investigation. Parker v. Moulton, 114 Mass. 99, 19 Am. Rep. 315. They claim, substantially in the language of this court in ...

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4 cases
  • Kidder v. Greenman
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 11, 1933
    ...of wrongful, because unauthorized, completion remains in the bill, and the bill assumes a double aspect. See Long v. Athol, 196 Mass. 497, 500, 82 N. E. 665,17 L. R. A. (N. S.) 96;Chinese American Restaurant Corp. v. Finigan, 272 Mass. 360, 364, 172 N. E. 510. The evidence admitted and the ......
  • Graustein v. Dolan
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 14, 1933
    ...506, 519, 102 N. E. 706;First National Bank of Haverhill v. Harrison, 271 Mass. 258, 171 N. E. 724;Long v. Inhabitants of Athol, 196 Mass. 497, 507, 82 N. E. 665,17 L. R. A. (N. S.) 96), who commonly report their findings without the evidence, is not affected by anything here decided. Decre......
  • Kidder v. Greenman
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 9, 1933
    ... ... bill, and the bill assumes a double aspect. See Long v ... Athol, 196 Mass. 497 , 500; Chinese American ... Restaurant Corp. v. Finigan, 272 Mass ... ...
  • Graustein v. Dolan
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 12, 1933
    ... ... 506 , 519; First National Bank ... of Haverhill v. Harrison, 271 Mass. 258 , 263; Long ... v. Athol, 196 Mass. 497 , ... ...

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