United States v. Noel Const. Co.

• Decision Date: 08 August 1924
• Docket Number: No. 818.,818.
• Citation: 1 F.2d 446
• Parties: UNITED STATES, for Use of McNULTY BROS. v. NOEL CONST. CO. et al.
• Court: U.S. District Court — District of Massachusetts

1 F.2d 446 (1924)

UNITED STATES, for Use of McNULTY BROS. v. NOEL CONST. CO. et al.

No. 818.

District Court, D. Massachusetts.

August 8, 1924.

Charles R. Elder, of Boston, Mass., and William F. Kimber, of New York City, for plaintiff.

H. R. Bygrave and H. V. Cunningham, both of Boston, Mass., for defendants.

MORTON, District Judge.

Only two questions of fact are now in dispute, viz.: (1) Certain countercharges against McNulty Bros. by Noel for removing rubbish and for making good damage done by the plasterers; and (2) allowances for extras to Daniels and Blomquist on painting. The auditor disallowed the first to a considerable extent, and allowed the second against the defendant for about 50 per cent. of the claim.

As to (1), two witnesses testified orally before me, and letters and other documentary evidence were introduced. The auditor's finding in a case of this sort is weighty evidence; but it is not so conclusive as a master's finding would be. The question still is how the facts appear to the court. The contract explicitly provides that all finished work, "particularly wood and glass," shall be protected by the plasterer against damage from the plastering, and that such damage shall be made good by the plasterer. Section 477. This contemplates that there might be finished wood and glass in the buildings where the plastering was being done. The testimony is that the government representative ordered Noel to put the sash in, and the letters show that McNulty Bros., when informed that the sash would be hung before the plastering was done, made no objection and did their work with the sash in place. There is testimony, which I am not prepared to reject, that the course followed was reasonable and proper, at least as to the buildings which were plastered during cold weather. It is not entirely clear how the auditor dealt with these items. The language of his report (pages 10 and 11) would indicate that he disallowed them all. But his schedule on page 11 shows that he allowed $1,069.96 in addition to $1,500 for heat. What the $1,069.96 covered is not stated. I infer that he allowed nothing in respect to the sash and glass, upon the ground that the sash should not have been hung before the plastering was done, and that the damage to it is therefore not chargeable to McNulty. If so, for reasons above suggested, I am unable to agree with him. Just how much this item of damage came to in dollars and cents is not very clear. From the schedule in the...