MacDonald v. Kavanaugh

• Decision Date: 20 May 1927
• Citation: 259 Mass. 439,156 N.E. 740
• Parties: MacDONALD et al. v. KAVANAUGH et al. KAVANAUGH et al. v. MacDONALD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 439

156 N.E. 740

MacDONALD et al.

v.KAVANAUGH et al.

KAVANAUGH et al.

v.MacDONALD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1927.

Exceptions from Superior Court, Suffolk County; Stanley E. Qua, Judge.

Action by Robert J. MacDonald and another against A. L. Kavanaugh and another, and by A. L. Kavanaugh and another against Robert J. MacDonald and another, tried together. On exceptions of defendants in first action and of plaintiffs in second action after adverse verdict. Exceptions overruled.R. J. Lane, of Boston, for MacDonald and another.

John J. Enright, of Boston, for Kavanaugh and another.

PIERCE, J.

These are two separate causes of action dependent upon the same evidence. They were tried together to a jury in the superior court.

In an action of MacDonald and Richardson, plaintiffs, the defendants excepted to the refusal of their motion for a directed general verdict; and to the denial of their motion for a directed verdict on the plaintiffs' item ‘38’ in the account annexed, that is to say, ‘For work and labor in preparation of plans and blueprints for said garage at agreed price $60,’ the jury found for the plaintiffs.

The undisputed evidence warranted the jury in finding that the plaintiffs and defendants on December 20, 1924, entered into a contract whereby the plaintiffs agreed to ‘perform in a faithful and workmanlike manner the following specified work, viz., the excavation, roofing, concrete, brick and plastering work, water connection and use of water, steel work, metal sash and wire glass, lumber, hardware including doors, all carpenter labor, painting, heating, in fact all material and labor in the construction of a public garage, at No. 2 Harris avenue, Jamaica Plain, Boston, Massachusetts. To be constructed in a first-class manner to the entire satisfaction of the owners. Same to be completed in a reasonable time, weather conditions permitting. All for the sum of ten thousand dollars ($10,000) with allowances * * * from above sum.’ The claim of these plaintiffs against the defendants is for work and material alleged to have been performed and furnished outside the terms of the original contract. In their brief the defendants do not question that the plaintiffs performed the work and furnished the material itemized in the account annexed or that the prices set against such items are reasonable for the services, if the defendants are obligated to pay for them, the defense thereto being that the plaintiffs under their contract were bound to furnish ‘in fact all material and labor in the construction of a public garage.’

Upon this issue there was evidence at the trial which warranted a finding that the garage to be constructed was to be built with reference to three plans; and that after the signing of the agreement changes were made that necessitated the performance of the work and furnishing of the materials sought to be recovered as extras. Respecting these items there is no evidence that the parties agreed on any additional price therefor; and the defendants contend that, because of the absence of such agreement, the work and materials called ‘extras' were required to be performed and furnished under the provision of the original contract, which reads, ‘in fact all material and labor in the construction of a public garage.’ Whether the parties intended when the changes in the plan were made that the additional costs, if any, should be borne by the plaintiffs or the defendants was a fact to be determined in the light of all the circumstances and was not a mere question of law. The motion for a directed verdict on the whole evidence was denied rightly.

The particular motion for a directed verdict on item ‘38’ was denied rightly. There was evidence that the plans were procured at the request of the defendants before the agreement was executed by the parties and that they ‘didn't go with the contract.’ There also was contradictory evidence to the effect that the plaintiffs were to prepare the preliminary plans as a part of the agreement to build the public garage for the price of $10,000. In these circumstances it is plain a verdict could not have been directed for the defendants. The facts that the agreement did not mention the plans and that there was no agreement to pay $60 as an ‘agreed price’ would not prevent the recovery of that sum if the plaintiffs were requested by the defendants to procure the plans and that sum was a reasonable price therefor, as the plaintiffs were entitled to recover a reasonable price for their services in the event they failed to prove an agreement to pay the specific sum set out in the account annexed.

The exception of the defendants to the question, ‘What is the fair, reasonable price for your own work and labor in preparing these plans,’ was based on the theory of the defendants that all the understandings and agreements before the execution of the contract were merged into that contract and were governed by the phrase above quoted in the contract. In overruling the exception the court ruled that:

‘It is for the jury to say whether the plans were to be paid for separately, or whether the getting of the plans together was either something that the witness was to do for his own benefit in order to bid on the job, or something that was at least included...