Smedley v. Wladen

• Decision Date: 10 October 1923
• Parties: SMEDLEY v. WLADEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 393

141 N.E. 281

SMEDLEY

v.WLADEN.

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 10, 1923.

Exceptions from Superior Court, Berkshire County; William Cushing Wait, Judge.

Action by Perry A. Smedley against Hiram C. Walden on a building contract. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained.

F. R. Shaw, of Adams, for plaintiff.

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

PIERCE, J.

This is an action of contract to recover the balance alleged to be due the plaintiff on a written contract for the construction of a ‘movie picture house and block’ as shown on the drawings and described in the specifications, which are made a part of the contract. When the action was brought in the superior court the declaration contained a count upon the original contract, and a count for extras which is not now an issue in this case. The case was referred to an auditor, who heard testimony and filed his report; that report is not material to the questions of law here presented. At the trial before a jury the plaintiff amended his declaration by adding two counts: Count 3, an account annexed with one item; and count 4, an account annexed for work and material performed and furnished, with credit items and a balance in favor of the plaintiff of $2,252.38. It is agreed that the answer of the defendant on file applied to the amended declaration.

The specifications signed by the plaintiff and defendant and made a part of the contract provide, among other provisions, that-

‘The work will be let under the form of contract on file at the office of the architect. No portion of the work or contract shall be sublet or assigned by the general contractor except by permission of the owner in writing.’

Upon conflicting evidence the jury would have been warranted in finding that the plaintiff sublet the mason work described as item 651 in count 4 of the amended declaration to Arthur W. Josslyn, doing business as a corporation under the name of McDonald & Josslyn; that McDonald & Josslyn paid for all work and material comprised in the part of the contract performed by Josslyn; and that Josslyn billed the work to the plaintiff, after he got it done, at $10,233.74, the entire price for the whole work under the contract being $16,600. The plaintiff never presented to the defendant a bill of items, or offered evidence to show what items made up the $10,233.74. The specifications in reference to plastering provide:

‘All plastering in cellar to be one-coat work. All other plastering to be three-coat work. Plaster throughout with Kings Windsor asbestos cement. To be put on and finished in strict accord with the manufacturer's specifications.’

At the trial-

‘the plaintiff admitted that he put on only two coats of plastering, that thereby he saved some money, that the defendant knew nothing of the changes but that his two-coat job was better than a three-coat job. He testified that the third coat could not now be put on, and the only way to comply with the specifications in this particular was to take the two-coat work off and plaster over again. He could not estimate how much this would cost.’

He further testified, in substance, that twocoat work would be more valuable to the owner of the building; that he would ‘refuse to put on three coats for any one and have to guarantee the job’; and that he would ‘refuse to do a job and have to put three coats on a wooden lath,’ as the specifications in this contract explicitly required should be done. On the other hand the defendant testified, and offered evidence to the effect, that three-coat work is better work and ‘is substantially different plastering from the two-coat work.’ On the testimony of the plaintiff the jury would have been warranted in finding that he intentionally and wilfully to save money for himself departed from the contract.

In addition to the evidence offered to prove an intentional departure from the contract in the matter of subletting a portion of the contract, and in the matter of the substitution of two-coat for three-coat plaster work, the defendant offerer evidence which warranted a finding of a departure, and in some instances of an intentional departure, from the requirements of the contract in regard to the matching of bricks and to the closeness of their joints, in regard to the whiteness of the mortar for the front of the block, in regard to the coping, in regard to the bridging and grouting, in regard to the construction of the roof and in regard to the substitution of concrete in place of a granite base or sill in front of the block.

[1] At the close of the evidence, and before argument, the defendant made in writing requests for special findings by the jury upon the questions whether there were intentional departures in any substantial matter from the plans and specifications without the consent in writing of the defendant, and whether the plaintiff sublet to Josslyn the construction of all brick, cement and iron work. The requests were denied and the defendant saved exceptions thereto. These exceptions are not argued in the brief and are consequently treated as waived.

Before argument the defendant submitted in writing the following requests:

‘(1) Upon the evidence in this case the plaintiff cannot recover upon the first count of the declaration.

‘(2) Upon the evidence in this case, if the plaintiff sublet the brick work or any other substantial part of the constructionwork under this contract, it was a violation of the contract in a substantial matter, and the plaintiff cannot recover.

‘(3) Upon the evidence in this case, if the plaintiff did not put on three coats of plaster but substituted therefore a plastering with only two coats, this is a departure from the contract in a substantial matter and the plaintiff cannot recover.

‘(4) Upon the evidence in this case if the plaintiff did not construct the front of the brick block with white mortar as required by the plans and specifications, but in place thereof used a brown mortar, affecting the appearance of the front of the brick structure, this is a departure from the plans and specifications in a substantial matter and the plaintiff cannot recover.

‘(5) Upon the evidence in this case, if the plaintiff did not construct a coping one...