Sikora v. Hogan

Citation51 N.E.2d 970,315 Mass. 66
Decision Date30 November 1943
CourtUnited States State Supreme Judicial Court of Massachusetts

May 10, 1943.

Present: FIELD, C.


Contract, Building contract, Performance and breach, In writing. Evidence Extrinsic affecting writing. Practice, Civil, Waiver. Waiver. Arbitration. Architect.

A modification of a contract, in part for the construction of a porch, by substituting a "new brick porch floor" for a wooden floor originally specified, might be found to be ambiguous and evidence was competent to show that the parties intended a porch floor constructed of second hand brick, not new brick.

A provision of a building contract requiring arbitration of all disputes and claims might be found to have been waived by the owner by proceeding to trial of an action by the builder for a disputed balance without insisting upon observance of such provision.

Evidence, that an architect in charge of alterations of a house knew that the owner had requested the builder to construct a floor of second hand brick and that the builder had figured on that kind of brick and had used it in constructing the floor, warranted a finding that a subsequent refusal of the architect to issue a certificate for payment to the builder on the ground that he should have used new brick was arbitrary and in bad faith.

If an architect in charge of the work performed under a building contract acted arbitrarily and in bad faith in refusing to issue a certificate for a payment to the builder in accordance with a provision of the contract requiring such certificate to entitle the builder to the payment, the lack of the certificate did not preclude the builder from maintaining an action against the owner for the payment.

CONTRACT. Writ in the District Court of Northern Norfolk dated June 26, 1941.

There was a finding for the plaintiff by Murray, J. A report was ordered dismissed by the Appellate Division for the Southern District, and the defendant appealed. In this court the case was submitted on briefs.

H. J. Dixon, for the defendant. D. S. Kunian, for the plaintiff.

DOLAN, J. This is an action of contract on an account annexed in which the plaintiff seeks to recover $374.45, alleged to be due for labor and material supplied by him in connection with alterations of a dwelling house owned by the defendant. The sole contentions of the defendant are that the floor of the porch installed by the plaintiff as an extra should have been constructed of new brick, that since no final certificate had been issued by the architect as provided in the original contract between the parties the plaintiff could not prevail and that the action was prematurely brought because under the terms of the original contract the plaintiff must first invoke arbitration.

The original contract for alterations of the defendant's building, which was in writing, was entered into between the parties on April 29, 1940. Among other specifications the contract called for the construction of a porch with a wooden floor and walls "to be built of second hand water struck brick." The contract provided that "The General Conditions of the Contract of the American Institute of Architects is hereby made a part of this specification." The contract of the institute provided, in part, that the owner of the building, without invalidating the contract with the builder, might order extra work or changes or alterations in the work, all such work to be executed under the conditions of the original contract; and also provided for the method of determining the value of such extras or changes, for periodic certificates for payment to be issued by the architect to the contractor as the work progressed, and for final certificate of satisfactory completion and acceptance of the work by the architect in order to entitle the contractor to final payment of any remaining balance. The contract of the institute further required arbitration of all disputes and claims with the award of arbitrators to be enforced in a court of law, but also provided ("Art. 31") that if "either party to this Contract should suffer damage in any manner because of any wrongful act or neglect of the other party or of anyone employed by him, then he shall be reimbursed by the other party for such damage"; that claims arising "under this clause shall be made in writing to the party liable within a reasonable time at the first observance of such damage and not later than the time of final payment"; and ("Art. 39") that "The Architect shall, within a reasonable time, make decisions on all claims of the Owner or Contractor."

There was also evidence of, and the judge found, the following facts: On or about June 18, 1940, the parties discussed the substitution of a porch floor of brick for the floor of wood called for by the original specifications. The defendant asked the plaintiff what it would cost to construct the floor of the same kind of bricks that were called for by the specifications and used in the construction of the walls of the side of the house, that is, of "second hand water struck brick." The plaintiff submitted to the...

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  • Sikora v. Hogan
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 30, 1943
    ...315 Mass. 6651 N.E.2d 970SIKORAv.HOGAN.Supreme Judicial Court of Massachusetts, Norfolk.Nov. 30, Action by John Sikora against Mary E. Hogan to recover amount due under a contract for labor and materials supplied by plaintiff in connection with alteration of a dwelling house owned by defend......

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