Loomer v. Harlow

• Decision Date: 20 May 1913
• Citation: 214 Mass. 415,102 N.E. 333
• Parties: LOOMER et al. HARLOW; HARLOW v. HARLOW; HARLOW v. LOOMER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 415

102 N.E. 333

LOOMER et al. HARLOW; HARLOW v. HARLOW; HARLOW v. LOOMER et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 20, 1913

COUNSEL

Francis J. Carney, of Boston, for plaintiffs.

Hollis R. Bailey and Otto C. Scales, both of Boston, for defendant.

OPINION

DE COURCY, J.

These are cross-actions arising out of a written agreement for the erection of a building, made between the parties, Loomer and Allen, hereinafter called the contractors, and Frank S Harlow, the owner. It was agreed therein that the contractors should 'provide all the materials and perform all the work for the erection and completion of a frame apartment building * * * as required by them as general contractors, as shown on the drawings and described in the specifications' prepared by the architects.

The principal question in dispute between the parties is whether the contractors were bound by the written agreement to do the painting. Admittedly this work was done by the owner with the knowledge of the contractors, and he seeks to recover the value thereof either in his cross-action, or by deduction from the contract price in the action brought by the contractors. In support of his claim he seasonably contended at the trial before the auditor and afterwards before the court, that the written contract was clear and unambiguous as to the painting and could not be varied by parol evidence. The question is before us on the owner's exceptions to the refusal of the court to give the following rulings requested:

'5. That the said written contract together with the said specifications is clear and unambiguous and establishes what material said Loomer and Allen were to provide and what work they were to perform and what sum of money they were to receive for the same.

'6. That according to the terms of the written contract said Loomer and Allen were legally bound to find all the materials, labor, apparatus, etc., for painting and finishing all the outside and inside woodwork and all the outside and inside metal, including the ornamental iron work as called for in the specifications at page 29.'

We are of opinion that these rulings should have been given. The specifications referred to in the contract expressly provided that 'this contractor shall furnish materials, labor apparatus, etc., to paint and finish all the outside and inside woodwork, and all the outside and inside metal, including the ornamental iron work.' It is apparent from the written agreement and was clearly understood by the parties and the architect, that the painting was embraced in the specified work of the ...