Searls v. Loring

• Decision Date: 26 May 1931
• Citation: 176 N.E. 212,275 Mass. 403
• Parties: SEARLS v. LORING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 403

176 N.E. 212

SEARLS

v.LORING.

Supreme Judicial Court of Massachusetts, Suffolk.

May 26, 1931.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by George B. Searls, trustee, against Robert M. Loring. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

George B. Searls, of Boston, for plaintiff.

H. W. Sexton, of Boston, for defendant.

RUGG, C. J.

This is an action of contract to recover the balance due on a written contract and for extra work. No question is raised as to the extras. The declaration is upon an account annexed. The first item in that account is ‘Balance on contract for heating and plumbing work $125.00.’ The answer of the defendant contained a generaldenial. It also set out that there was a contract between the parties whereby the plaintiff agreed to furnish the labor and materials declared upon in item 1 of the account annexed to his declaration, and that in various particulars there was failure on the part of the plaintiff to perform, and alleged in recoupment expenses incurred by the defendant in completing the contract as nearly as practicable. It also averred damages arising from defective work of the plaintiff and overpayment by the defendant to the plaintiff.

Parts of the contract printed in the record show that it was ‘intended to cover materials needed to make a first class hot water heating system. This material * * * shall be of best quality and erected in a workmanlike manner.’ The contractor testified in substance that the work was completed about the first of 1929 and was a workmanlike job; that in June, 1929, he saw two leaks in the system, which he agreed to but never did fix, and that he had been paid all due on the contract except $125. There was other testimony from an expert that he had inspected the system and found it a good one as to materials and workmanship; that he saw no leaks, but, if there were leaks, it was not properly constructed and was defective. The owner of the building testified that he moved into the house in February, 1929, and noticed six to eight leaks around the radiators and pipe joints, which were a source of inconvenience to him and necessitated keeping absorbent pads under the valves and joints to prevent staining the floor; that he was unable to cover the pipes in the cellar with asbestos ‘until last winter’ (apparently 1929-30) because of the leaks, and that in his opinion the work had not been completed.

This is in substance all the evidence in the record. There is nothing to show the contract price of the job or the expenditures, if any, due to the leaks, or how long the leaks continued.

The defendant requested instructions to the effect (1) that the plaintiff could not recover upon the contract unless he fully performed it, (2) that the plaintiff could not recover under item 1 of the account annexed unless the hot water system was erected in a workmanlike manner, and (3) unless the job was completed, and (4) that the burden of proof of performance was on the plaintiff. These requests were denied. The charge, so far as here material, was in these words: ‘Now in order to enable the plaintiff to recover for any balance due he has got to show that he substantially performed the contract. Of course, if he omits intentionally to do anything, any part of the contract, * * * he can't recover anything. If he leaves undone work that is substantial he can't recover, but the law never has left a contractor in a position that he can't recover anything on the balance due on a contract if through mistake or otherwise he left undone some small thing. The defendant says he performed his work in an unworkmanlike manner. * * * Now it is for you to determine whether those defects are so substantial that they should prevent the plaintiff from recovering. If they are not, the plaintiff would be entitled under ordinary circumstances to recover the balance due, with an allowance for anything not performed of which there is evidence as to the expense. * * * Now to sum up the whole question. Did the plaintiff substantially perform his contract? If he did, can you, in view of the evidence, make any allowance for the making good these alleged defects? The contract calls for a ‘complete’ job, but in my view of the law ‘complete’ means ‘substantially,’ as I have already said. That is for you to determine, whether he is entitled to recover the amount that he claims under the contract, less anything that you think ought to be allowed for doing those things I have spoken of. * * * Of course, Gentlemen, the plaintiff has got to prove that he performed his contract...