Stuart v. City of Cambridge

• Citation: 125 Mass. 102
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 24 July 1878
• Parties: Charles H. Stuart & others v. City of Cambridge

125 Mass. 102

Charles H. Stuart & others v. City of Cambridge

Supreme Court of Massachusetts

July 24, 1878

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Suffolk. Contract on an account annexed to recover $ 591.84, for labor performed and materials furnished. At the trial in the Superior Court, before Wilkinson, J., without a jury, it appeared that on November 20, 1874, the plaintiffs, as the parties of the first part, and the defendant, acting by its committee on public property, as the party of the second part, entered into an agreement, under seal, the material parts of which were as follows:

"The said parties of the first part do hereby agree for themselves, their heirs and assigns, to provide all materials and perform all labor required in the erection and completion of the masonry of a building, for the party of the second part, to be located upon its estate situated on the corner of Sacramento and Oxford streets, in and for said city, according to plans, drawings, and the accompanying mason's specifications, prepared by J. H. Littlefield, architect, bearing even date herewith, and signed by the parties hereto; and such other drawings and detail explanations, as may be considered necessary for the progress and completion of the building, according to the true intent and meaning thereof.

"And in case any particulars shall be deficient or not clearly shown by said plans or expressed in said specifications, the said parties of the first part shall carry out the general design as directed by said committee and architect in as thorough a manner as if the same were shown and fully expressed.

"And in case any work or materials done or provided by the said parties of the first part shall be unsatisfactory to the said committee or architect, then the said parties of the first part shall, on being notified thereof by said architect, immediately remove such unsatisfactory work or materials and supply the place thereof with other work or materials which shall be satisfactory to said committee and architect.

"And it shall be lawful for the said committee or architect at all times to direct in writing any additions to or deviations from the plans and specifications aforesaid, without in any other respect or particular varying this agreement or impairing the force thereof; and in case of any such deviations or additions, so directed in writing, such further time shall be allowed for the completion of the said work as the said architect shall decide to be reasonable, and such sums of money shall be added to, or deducted from, the amount of the consideration hereinafter agreed to be paid, as the said parties, committee and architect shall judge the increase or diminution in the amount of work and materials thereby occasioned to be fairly worth.

"And it is expressly agreed that no alterations or additions are to be paid for unless so directed in writing.

"In consideration of the foregoing, the said party of the second part hereby agrees to pay to the said parties of the first part" "the sum of ten thousand four hundred and ninety-five dollars, in separate payments as follows:" [Then followed a provision in respect to the mode of payment.]

The plans did not show any piles, and the specifications, referred to in the agreement, did not mention any; but the specifications provided, under the heading "Excavations," that the earth should be removed "from the area of the lot to be covered by the building and other works to the requisite length, breadth and depth, for the basement, walls, foundations, piers," &c. Under the heading "Foundations," were the following provisions:

"The exterior basement foundation walls, shown to be constructed of stone by the plans, and all other exterior foundations beneath steps, door sills, platforms, &c., are to be constructed of the best quality of large, sound, flat, blue stone, laid with the broadest sides level. The work is to be well bonded and tied together, with at least every fourth stone the full thickness of the wall. All the basement and trench walls are to be faced upon both sides, and laid straight and true to a line, the basement side with a plumb, true fall, and the exterior with a battering fairly straightened face. The work is to be laid close jointed, thoroughly pinned up, and chinked with suitable stone quoins upon both sides, and filled solid with stone clear through.

"The work will be laid solid in, and pointed on both sides with mortar composed of one cask of best Newark cement to one of best fresh Rockland lime, mixed with a proper proportion of coarse, sharp-grit sand. The mortar for the trench walls, below the basement floor, will be three fourths cement to one of lime.

"The earth beneath all the walls is to be thoroughly tamped and puddled, and the bottom course of stone firmly bedded upon it. The bed or levelling course will be laid broader than the wall above it, as indicated by the sectional drawings.

"All the basement walls will commence fourteen inches at least below the basement floor, and as much deeper as necessary to guarantee a firm and solid foundation. The walls will all be of the thickness and construction indicated by the drawings, laid and completed in the most thorough and workmanlike manner."

The specifications further provided that the plaintiffs should "do any and all other masonry and jobbing in the masonry line, necessary to fully finish and complete all parts of the building according to the true intent and meaning of the plans, drawings and the mason's specifications, whether particularly herein described or not."

The work and materials in question consisted of piles furnished and driven by the plaintiffs; in excavating to an extra depth in order to drive the piles, and in cutting them off; of coping stones, furnished to lay on the piles, with the labor of laying the same; and of rubble stones laid on the coping stones up to the line of the bottom of the foundation as shown on the plans from which the plaintiffs made their estimate,...