Reynolds v. Cole

• Decision Date: 03 July 1930
• Citation: 172 N.E. 91,272 Mass. 282
• Parties: REYNOLDS et al. v. COLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 282

172 N.E. 91

REYNOLDS et al.

v.COLE.

Supreme Judicial Court of Massachusetts, Berkshire.

July 3, 1930.

Exceptions from Superior Court, Berkshire County; Henry T. Lummus, Judge.

Action by William W. Reynolds and others against Howard Cole. Verdict for plaintiffs, and defendant brings exceptions.

Exceptions overruled.

W. A. Heaphy, of Pittsfield, for plaintiffs.

M. B. Warner, of Pittsfield, for defendant.

CARROLL, J.

This is an action of contract. The declaration contains six counts. The first count is upon a written contract for the construction of nine holes of an eighteen-hole golf course at Lenox. By this contract the plaintiffs were to install a suitable water system and to supply water for each tee and green with galvanized iron pipes. It was admitted by the plaintiffs that they furnished galvanized steel pipes and that steel pipes for the nine holes would cost $700 to $1,000 less than iron pipes. One of the plaintiffs testified that galvanized iron has a longer life than galvanized steel. He was asked why they departed from the contract and supplied galvanized steel instead of galvanized iron, and he replied that the architect employed by the defendant told them ‘that the mention of galvanized iron in the contract and specifications was an oversight.’ This witness further stated that as the job was figured galvanized steel was to be put in; that the architect's attention was directed to the statement in the specifications calling for iron pipes and he was asked if that was his intention, to which the architect said, ‘No, that was a slip in the dictating, as galvanized steel was what he intended and what he had figured, and he gave us instructions to put it in.’ There was evidence that the defendant was on the premises many times during the progress of the work. ‘Sometimes he was in company with the architect.’ No complaint was made by the defendant during the progress of the work because of the use of steel pipe instead of iron pipe. The water system ‘was a suitable water system’ and ‘functioned when completed.’ Certificates for $44,000 were given the plaintiffs. The last certificate for $3,096.26 was not paid.

Counts two, three and four deal with the construction of a tennis court, work for top dressing and extra work. Count five is to recover for the work and material in the first four counts. Count six is an account annexed including all the labor and material furnished.

The defendant moved that a verdict be directed in his favor on the first count and ‘in the common counts * * * in which payment is claimed for the construction of the golf course under the contract.’ He stated in answer to the request to specify the grounds of his motion that there was ‘an intentional departure in a substantial matter whereby the plaintiff was benefited,’ that ‘the contract called for a certain type of pipe,’ that this type was not used, ‘and therefore he is not entitled to recover.’

Four questions were submitted to the jury; the first concerned the amount the plaintiffs were entitled to recover. The remaining questions related to the amount the plaintiffs could recover for the extra work and work on the tennis court. The judge instructed the jury that the plaintiffs could not recover on the first count; that if the contract was substantially performed and the variation from the contract was not intentional, he could not recover the contract price but could recover ‘a sum less than the contract price which will represent the value of what he has put in.’ In discussing the testimony bearing on the statement of the architect, the jury were instructed: ‘While I have told you that t...