New York Cent. & H.R.R. Co. v. T. Stuart & Son Co.

• Decision Date: 29 June 1927
• Citation: 157 N.E. 540,260 Mass. 242
• Parties: NEW YORK CENT. & H. R. R. CO. v. T. STUART & SON CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

260 Mass. 242

157 N.E. 540

NEW YORK CENT. & H. R. R. CO.

v.T. STUART & SON CO.

Supreme Judicial Court of Massachusetts, Middlesex.

June 29, 1927.

Exceptions from Superior Court, Middlesex County; J. B. Richardson, Judge.

Action by contract or tort by the New York Central & Hudson River Railroad Company against the T. Stuart & Son Company. Verdict for plaintiff, and defendant excepts. Exceptions sustained.L. A. Mayberry, of Boston, for plaintiff.

F. P. Garland, of Boston, for defendant.

BRALEY, J.

On August 4, 1909, the defendant entered into a contract with the plaintiff, the lessee of the Boston & Albany Railroad, for the building of a concrete retaining wall approximately 700 feet in length along the northerly side of the location of the railroad at Brighton in this commonwealth. The work was to be done in accordance with plans and specifications prepared by the plaintiff's engineer, and ‘all directions, explanations, superintendence, and instructions, spoken of, or required’ under the contract also were to be given by the chief engineer or such engineers ‘in charge of the work,’ as he may designate in writing, whose functions and powers were ‘strictly limited to the supervision of the contractor's operations in executing this work.’ The contract further provided that:

‘They are * * * expressly prohibited from making, permitting, or authorizing any alterations, changes, or departures in or from the terms and provisions of this contract, or said plans and specifications.’

The chief engineer was the only person authorized to make changes and to determine the quality and quantity of the work performed. His interpretation of and decision upon questions in dispute between the parties was to be accepted as conclusive and binding, and--

‘any omission or failure on the part of the engineer in charge of the work, or of the chief engineer, to disapprove or reject any work or material at the time of a monthly or other estimate, or during the inspection of the work or materials, shall not be construed to be an acceptance of any defective work or material.’

The contract contained the following clause of indemnity:

‘The contractor agrees to indemnify and save harmless the company for and from all claims, demands, payments, suits, actions, recoveries and judgments of every name and description, brought or recovered against it, for, or on account of, any injuries or damages, received or sustained by any party or parties, by reason of any act of the said contractor, or of any subcontractor hereunder, or of any agent or servant of either said contractor or said subcontractor, in the construction of said work, or by or in consequence of any negligence or carelessness in guarding the same. * * * Neither the completion and acceptance of the work, nor the final payment, operate to discharge the contractor from his (or its) responsibility for any claims for any personal or property damages which may have arisen during the work under the contract, whether such claims are then known or may become known in the future.’

By paragraph 2 of the specifications:

‘No information upon any such matters derived from maps, profiles or specifications, or from the engineer or his assistants, shall in any way relieve the contractor from all risks incident to the work.’

The seventh paragraph of the specifications states that:

‘The contractor will properly and sufficiently sheet and brace the excavation along the property line of the company, which is also the backline of the retaining wall, that the adjacent land of abutting owners shall not cave in or be in any way disturbed. The contractor will not trespass or encroach on the land of abutting owners, except as he himself obtains permission so to do.’

And in paragraph 15:

‘The contractor agrees that, this being a wall on the property line of the railroad company, he will protect, brace, and not trespass upon, the land of abutting owners, and will protect the railroad company from all suits, claims or damages arising from the prosecution of the work, and will himself assume all responsibility for damages to the property of abutting owners.’

The present action is brought to recover damages for an alleged breach of the clause of indemnity. It could have been found by the jury that, as the work progressed, the retaining wall extended for a short distance onto the land of one Hermine Szathmary, an abutting owner, who had not assented to the encroachment. It was contended by the defendant that if any trespass had been committed, in the erection of the wall, it was done under the direction, order and approval of the plaintiff and was due to its negligence, and evidence in support of this contention was introduced at the trial. On November 9, 1909, after the completion of the wall, Szathmary brought a bill in equity against the Boston & Albany Railroad Company and the defendant for damages and for an injunction, at the trial of which-as shown by a transcript of the proceedings admitted in evidence-the defendant was found to have trespassed; but damages only were awarded. On the plaintiff's appeal the decree was reversed by this court. Szathmary v. Boston & Albany Railroad, 214 Mass. 42, 100 N. E. 1107. And the trial court, after rescript, entered an interlocutory decree directing the removal of so much of the wall as constituted an encroachment on the plaintiff's land; but, the parties having agreed upon a settlement, the railroad company paid to Szathmary $3,585, and thereupon a final decree was entered, the material part of which is as follows:

‘* * * It appearing that a settlement of the matters in dispute therein has been made by a grant of a certain easement in the land of the plaintiff * * * by deed, * * * now therefore, upon consideration thereof, and by agreement of all parties hereto, it is ordered, adjudged and decreed that the plaintiff's bill be and the same is hereby dismissed without costs to either party.’

It was agreed by the parties that the defendant was seasonably notified of the pendency of the bill and given opportunity to defend the suit, but did not enter an appearance. It also was agreed that if Mr. George L. Mayberry, of counsel for the defense, were in court he would testify that:

‘From the time the rescript in the case of Szathmary against the Boston & Albany Railroad, February 26, 1913, was handed down by the Supreme Judicial Court, to the date of the final settlement to Szathmary, July 7th, he was in constant touch with Mr. Jesse C. Ivy,’ counsel for the contractor.

After the introduction of the foregoing documentary evidence and the report of an auditor to whom the case had been referred, the plaintiff rested. During the introduction of testimony by the defendant, and subject to its exception, the judge made the following rulings:

‘* * * The question of encroachment upon Szathmary land is conclusively determinedin an equity suit in Suffolk, where the findings of fact show that there was an encroachment, and said findings were binding upon the parties to that suit, to their privies, and that the defendant company was bound by such finding of fact on the matter of encroachment or trespass; that therefore the court rules that the evidence offered is not admissible in this suit.

‘If the plaintiff in good faith made the settlement on the basis that there was an encroachment there and made what he deemed in good faith was the best settlement that could be made under the circumstances, that although in reaching that settlement he got a deed for an easement in the Szathmary land, that that came in within the terms of the contract of indemnity, whereby the plaintiff [sic] was obliged to pay the plaintiff, what it paid out to get rid of the encroachment. If the taking of the deed was merely a form or means of reaching a settlement in good faith, that it would not deprive the plaintiff of a right of action against the defendant for an amount paid in good faith, if the real basis of the getting of the deed and the paying of it was to make a final settlement.

‘I think it appears if the plaintiff acted as a reasonably prudent man would act under similar circumstances, acting in good faith, then that it may recover the amount it paid, although it turns out and the jury find that the...