Morgan v. Town of Burlington
| Decision Date | 05 June 1944 |
| Citation | 55 N.E.2d 758,316 Mass. 413 |
| Parties | WILLIAM G. MORGAN v. TOWN OF BURLINGTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 2, 1944.
Present: FIELD, C.
J., QUA, RONAN & WILKINS, JJ.
Contract, Building contract, Construction, Performance and breach. Architect. Agency, What constitutes, Architect.
Under a contract in writing and plans and specifications for the construction of a high school building for a town calling for disposal of drainage by dry wells, with provisions that in the performance of the work the architect should be the representative of the town and that, if subsurface conditions different from those indicated in the plans and specifications should appear, he should make at once necessary changes in the plans and specifications with an adjustment of the contractor's compensation accordingly the architect as to such changes was an agent of the town and it was responsible for unreasonable delay on his part in making them.
A town was bound to see that necessary plans were furnished seasonably to a building contractor with whom it had made a contract for the construction of a high school building, and was responsible for unreasonable delay by the architect in making certain necessary changes in the plans where such delay was not caused by fault or neglect of the contractor.
A town had no right to a sum specified in a building contract as liquidated damages for failure of the contractor to complete the work at a certain date where his failure so to complete it was due to unreasonable delay on the part of the architect in making certain necessary changes in the plans and the town, not the contractor, was responsible for the architect's delay.
Under a separate article of a contract for the construction of a high school building for a town which provided that, if subsurface conditions different from those indicated by the plans and specifications should appear, the architect should make at once required changes in the plans and specifications with an adjustment of the contractor's compensation
"in the manner provided herein for adjustments as to extra and/or additional work and changes," the architect, although other provisions gave the town a general option to require the contractor to perform extras at fixed rates and gave the architect broad powers of interpretation of the contract plans and specifications and the power to "decide all . . questions in connection with the work," was not empowered to change the contract or to let out to bids and award to another the work required by changes so made by him in the plans and specifications on account of subsurface conditions; the contractor was entitled to have that work and to be paid for it under the contract provisions.
CONTRACT. Writ in the Superior Court dated February 10, 1940. The case was tried before Greenhalge, J.
J. J. Moss, for the defendant.
A. E. Lewis, (W.
M. Shaughnessy with him,) for the plaintiff.
This is an action of contract in which the plaintiff in the first count of his declaration seeks to recover the sum of $1,000 which the defendant claims to hold as liquidated damages and, in the second count, damages which he alleges were caused by various breaches on the part of the defendant. The plaintiff had a verdict on both counts. The defendant excepted to the denial of its motions for directed verdicts, to the refusal of the judge to grant its requests, and to a portion of the charge.
There was evidence that the plaintiff entered into a written contract with the town by which he was to construct a high school building and complete the work in two hundred eighty-five days. He began work on October 12, 1938. The plans and specifications called for the disposal of drainage by a series of dry wells, but after the wells were dug it was discovered that such a system would not be practical on account of the nature of the soil, and the architect on October 28, 1938, ordered the plaintiff not to do any more work with reference to the drainage until a new system could be devised. Thereafter the architect drafted five different sets of plans for the new system, the final set being completed on March 1, 1939. There was evidence that two weeks would be a reasonable time for the preparation of a set of plans. The plaintiff's bid for the installation of the new system was rejected and the defendant on August 1, 1939, awarded this work to another contractor. On account of the location of the pipes in the building the plaintiff was delayed in the performance of his work by the delay in furnishing plans and completing the drainage work. He also claims damages on account of the failure of the town to give him the work of installing the revised system of drainage. There was evidence that the plaintiff, the architect and the building committee which represented the town considered this work as an extra under the contract. This work was not given to the plaintiff because the building committee thought his bid was too high. The building committee refused to grant an extension of time to the plaintiff from July 23, 1939, the time fixed by the contract for the completion of the work, to September 1, 1939, and the town has retained $1,000 for delay during this period of forty days at the contract price of $25 per day. This committee, however, granted the plaintiff an extension of time from September 2, 1939, to September 29, 1939, when a controversy was pending between the committee and certain public works administration officials with reference to electrical equipment. The school was completed before the last mentioned date. The bill of exceptions states that the case was referred to an auditor who filed a report which was put in evidence. The report is not referred to in the bill of exceptions other than by stating certain findings made by the auditor, which in effect were that the architect in revising the plans for the new drainage system acted in good faith but with a complete disregard of the effect of the delay on the plaintiff; that the delay in the completion of the building was due primarily to the delay in determining the new drainage system; that inclement weather caused some delay which could have been lessened if the building had been "closed in" by the plaintiff; that the plaintiff's request for the forty-day extension should have been granted because the failure of the plaintiff to complete the building at the time fixed by the contract was not due to his fault or neglect; and that the work involved in the new drainage system should have been awarded to the plaintiff in accordance with the contract.
The contract defined "extra work" as work required by the town which in the judgment of the architect involved changes in or additions to the work required by the plans and specifications. The contract authorized the town to require the performance by the plaintiff of such extra work as the town might deem necessary, payment for which was to be computed in one of three ways mentioned. It contained a separate article which provided that, if the plaintiff encountered subsurface conditions different from those shown on the plans or indicated by the specifications, he should immediately notify the architect, who should promptly investigate the conditions and, if he found them to be different from those represented by the plans or specifications, should at once make such changes in the plans and specifications as were necessary, and that any increase or decrease of cost resulting from such changes was "to be adjusted in the manner provided herein for adjustments as to extra and/or additional work and changes." The contract provided for liquidated damages for each day the work remained uncompleted after July 23, 1939. It authorized the building committee to grant an extension of time for the completion of the work where the delay was not due to the fault or negligence of the plaintiff. It was expressly provided that the architect should represent the town in the performance of the work, all of which was to be performed under the direction and to the satisfaction of the architect. He was to determine the amount and suitability of all parts of the work, "interpret the plans, specifications, contract documents, and any extra work orders and . . . decide all other questions in connection with the work."
The defendant makes three contentions, to wit, the plaintiff was not entitled to secure the new drainage work; the architect was not the agent of the defendant and it was not liable for his unreasonable delay in drafting plans for the new drainage system; and the defendant had a right to withhold the $1,000 as liquidated damages for the plaintiff's delay in completing the work.
No question is raised but that the architect had the right to order the drainage work stopped when it was discovered that the nature of the soil would not make practicable the installation of the system originally contemplated. The installation of a system for the disposal of the drainage by dry wells in accordance with the plans and specifications could be found to indicate that the character of the subsoil was such as to permit the successful operation of such a system. When it was discovered that the subsoil would not permit the use of such a system, it became the duty of the architect to devise a new system and to make "at once" the necessary "changes in the Plans and/or Specifications." It is conceded by the defendant that there was unreasonable delay in changing the plans but it contends that it was not liable for the delay because the architect was not the agent of the defendant. There are two answers to this contention. In the first place, the contract expressly provided that in the performance of the work the architect was to be the...
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