N.J. Magnam Co. v. Fuller

• Decision Date: 09 February 1916
• Citation: 222 Mass. 530,111 N.E. 399
• Parties: N. J. MAGNAM CO. v. FULLER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 530

111 N.E. 399

N. J. MAGNAM CO.

v.FULLER et al.

Supreme Judicial Court of Massachusetts, Bristol.

Feb. 9, 1916.

Exceptions from Superior Court, Bristol County; John D. McLaughlin, Judge.

Actions by N. J. Magnam Company against R. J. Fuller and others, and by R. J. Fuller and others against N. J. Magnam Company, which were consolidated. There was a verdict for Robert J. Fuller and others, and N. J. Magnam Company excepted. Exceptions overruled.

Wm. J. Brown and Archibald C. Matteson, both of Providence, R. I., and Baker & Thurston, of Fall River, for contract.

J. W. Cummings, C. R. Cummings, and J. W. Nugent, all of Fall River, for committee.

RUGG, C. J.

N. J. Magnam Company, hereafter referred to as the contractor, made a written agreement with Robert J. Fuller and four others, hereafter called the committee--

‘to supply the material and to the construction of a grand stand on Columbia Field, in accordance with the plans and specifications drawn up and submitted by Engineer J. E. Judson.’

The grand stand was to be made of concrete.

1. After the contract had been partially performed, a concrete slab, which was an important part of the structure, broke when its supports were removed. Thereupon, the contractor refused to complete the contract in accordance with the original plans and specifications, but was ready and offered to finish the structure provided a new and suitable design and specifications for the slab were furnished. The contractor offered to show that its reason was that it had consulted engineers and had been advised that the original plans and specifications were unsuitable and improper, and that a grand stand erected in accordance therewith would not be safe. Testimony to support this engineering view was offered. The judge ruled in substance that the reason and the evidence were not an excuse for failure to complete the contract. This ruling was right. When one enters into a contract with a builder to erect a structure in accordance with plans and specifications, which are open to inspection, without express provision touching the subject, there is no implied warranty or agreement on the part of the owner, in the absence of circumstances which by necessary intendment are the equivalent of a warranty or agreement, that the work can be done according to the plans and specifications, or that, if so done, if will be safe. It is the duty of one, who proposes to enter into a building contract to examine the contract, plans and specifications, and to determine whether it is possible to do the work before entering into the engagement, or to insist upon some stipulation covering that matter. If, without a special agreement upon that point, he makes a general contract without fraud or mutual mistake, he has bound himself to do the work. If it turns out that he has agreed to do something which is impossible or impracticable, he cannot for that reason alone refuse to go forward. Having made his contract, he must fulfill it or bear the consequences of a breach. Rowe v. Peabody, 207 Mass. 226, 234, 93 N. E. 604, and cases there collected; Winston v. Pittsfield, 221 Mass. 356, 108 N. E. 1038; Thorn v. Mayor of London (1876) 1 App. Cas. 120.

The contract in the case at bar is simple, direct and unequivocal. It contains no stipulation on the part of the committee that the grand stand could be completed or that it would be safe when completed. There are no circumstances revealed in the record which constitute an implied guaranty to this effect. The undertaking of the contractor is unqualified that he will complete the grand stand ‘in accordance with the plans and specifications.’ The evidence offered and excluded constituted no excuse for failure to perform the contract.

2. As the damages in the action of the...