Rowe v. Town of Peabody
| Decision Date | 03 January 1911 |
| Citation | 93 N.E. 604,207 Mass. 226 |
| Parties | ROWE et al. TOWN OF PEABODY v. TOWN OF PEABODY. TOWN OF PEABODY v. UNITED STATES FIDELITY & GUARANTY CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Johnson, Clapp & Underwood and S. H. Donnell, for Town of Peabody.
C. F Choate, Jr., and F. H. Nash, for Rowe and others and for the United States Fidelity & Guaranty Co.
The plaintiffs in the first suit, hereinafter called the contractors, made in July, 1905, an agreement with the town of Peabody for the building of a tunnel from Suntaug Lake for a distance of 1,550 feet, and for the laying of certain pipe and the performance of other specified work. The contractors were to do all the work and supply the materials, so as to furnish to the town a completed tunnel with all its equipment, and were to be paid fixed prices for the different parts of what they were to do. They gave to the town a bond with the defendant in the second suit as surety, conditioned for their faithful performance of the contract. The work was to be a timber-supported tunnel, in which was to be constructed a masonry conduit 30 inches in diameter. The judge instructed the jury that the contract required as essential conditions He further ruled that under the contract the officers acting for the town had no power Both of these rulings were made at the request of the contractors and apparently without objection by any party. They must now be taken as correct. MacKnight Flintic Stone Co. v. New York, 160 N.Y. 72, 54 N.E. 661.
The contractors began to construct the tunnel as required by the contract, but presently found that owing to the nature of the soil there was serious difficulties, so great, they contended, as to make the construction in that way practically impossible, and certainly so great as to make it impracticable without a very large and disproportionate expense, such as they were not able to incur. Finally, on October 27th, after some negotiations with the engineer and with the committee of the town, which so far as necessary will be referred to hereafter, the contractors sent to the committee a letter formally abandoning the contract. The town then completed the tunnel by what is called the pneumatic construction, which necessarily involved a cost of $47,805.12 in excess of the contract price. It was also necessary under this mode of construction to make the diameter of the tunnel 48 inches instead of 30 inches. This mode of construction, as already pointed out, was essentially different from that originally contracted for; but it does not seem to have been disputed that if not the only practicable method, it was at least the cheapest, most expeditious and most economical method by which the tunnel could be constructed.
The first contention made in behalf of the contractors is that the performance of their contract was impossible, or at least that it might have been found by the jury to be impossible and that for this reason the contract was no longer binding upon the parties. They argue that a contract to build a particular tunnel of specified dimensions by a described method of construction is like a contract to ship goods by a certain steamer, or to sell potatoes to be raised upon certain specified land, or to account for the proceeds of butter to be made in a certain factory, or to build a bridge by the caisson method--in each of which cases it has been held that the continued existence of the subject-matter of the contract or the continued practicability of the essential details that are stipulated for is an implied condition of the continued validity of the agreement. Krell v. Henry, [1903] 2 K. B. 740; Chandler v. Webster, [1904] 1 K. B. 473; Howell v. Coupland, 1 Q. B. D. 258; Stewart v. Stone, 127 N.Y. 500, 28 N.E. 595, 14 L. R. A. 215; Buffalo & Lancaster Land Co. v. Bellevue Improvement & Land Co., 165 N.Y. 247, 59 N.E. 5, 51 L. R. A. 951; Lovering v. Buck Mountain Coal Co., 54 Pa. 291. This is the same principle which we recently considered in Hawkes v. Kehoe, 193 Mass. 419, 79 N.E. 766, 10 L. R. A. (N. S.) 125. It has frequently been applied in the courts. See, besides the cases already cited, Angus v. Scully, 176 Mass. 357, 57 N.E. 674, 49 L. R. A. 562, 79 Am. St. Rep. 318; Butterfield v. Byron, 153 Mass. 517, 27 N.E. 667, 12 L. R. A. 571, 25 Am. St. Rep. 654; Elliott v. Crutchley, [1903] 2 K. B. 476; McKenna v. McNamee, 15 Canada S. C. 311. But the question is as to the construction of the contract which the parties have made. This was recognized in most of the cases above cited. One who chooses to contract absolutely for the performance of a certain thing is not to be excused from such performance, in the absence of any other ground, merely because it either was originally or has since become impossible of execution. As was said by Blackburn, J., in the leading case of Taylor v. Caldwell, 3 Best & S. 826, 833, 'Where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it or pay damages for not doing it, although in consequence of unforeseen accidents the performance of his contract has become unexpectedly burdensome or even impossible.' This also has been frequently declared by the courts. Jones v. St. John's College, L. R. 6 Q. B. 115, 127; Paradise v. Jane, Aleyn, 26; Atkinson v. Ritchie, 10 East, 530; Hill v. Sughrue, 15 M. & W. 253; Harvey v. Murray, 136 Mass. 377; Drake v. White, 117 Mass. 10; Stees v. Leonard, 20 Minn. 494 (Gil. 448). As was said by the present Chief Justice in Butterfield v. Byron, 153 Mass. 517, 520, 27 N.E. 667, 668, 12 L. R. A. 571, 25 Am. St. Rep. 654, 'the fundamental question is, What is the true construction of the contract?'
In the case at bar the contract expressly stated that the nature of the underground plot had not been investigated, and that the committee of the town denied any responsibility for its character. The contractors also agreed by the twenty-third article of the contract to take all responsibility for the work and to bear all losses resulting on account of its nature or character or because of the nature of the ground being different from what was estimated or expected. The difficulties which it was claimed made the prescribed mode of construction impossible arose wholly from the character of the soil beneath the surface. They were warned that there might be such difficulties, and no one could say in advance that these might not be very great, or even insuperable. But they chose to make their agreement an absolute one, and the court cannot relieve them from the bargain which they saw fit to make. The case is well within the decisions. Boyle v. Agawam Canal Co., 22 Pick, 381, 33 Am. Dec. 749; Dermott v. Jones, 2 Wall. 1, 17 L.Ed. 762; Eastman v. St. Anthony Falls Water Power Co., 24 Minn. 437; Thorn v. Mayor of London, L. R. 9 Exch. 163; L. R. 10 Exch. 112, 1 App. Cas. 120. There are three English cases, decided respectively in the House of Lords or in the Court of Appeal, which resemble closely the case at bar. Jackson v. Eastbourne Local Board, 2 Hudson, Building Contracts (3d Ed.) 67; Bottoms v. Lord Mayor of York, Id. 220; and McDonald v. Mayor of Workington, Id. 240. In the first of these cases, Lord Esher said in the Court of Appeal:
We are clearly of opinion that these contractors were not excused from the performance of their agreement by reason of its alleged impossibility, but that they were bound either to accomplish what they had promised to do or to respond in damages for their failure.
But it is contended that the town did not choose to stand upon its rights but waived performance by the contractors of the unfortunate obligation into which they had entered, and that it made a new arrangement with them, under which they were to construct another and different tunnel. The original contract, it is contended, was annulled or rescinded by mutual consent, and the parties now stand as if no such contract had been made.
It was competent for the parties to do this if they chose to do so and under the circumstances of this case, considering the changed relations of the parties and the proposed modifications of the work to be done, there would be a sufficient consideration for the abandonment of the original contract and the substitution of a new arrangement. Munroe v. Perkins, 9 Pick. 298, 20 Am. Dec. 475; Rogers v. Rogers & Brother, 139 Mass. 440, 1 N.E. 122; Alden v. Thurber, 149 Mass. 271, 21 N.E. 312; Thomas v. Barnes, 156 Mass. 581, 31 N.E. 683; Stebbins...
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