Vitti v. Garabedian

• Decision Date: 29 May 1928
• Citation: 264 Mass. 1,161 N.E. 607
• Parties: VITTI v. GARABEDIAN. GARABEDIAN v. VITTI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 1

161 N.E. 607

VITTI

v.GARABEDIAN.

GARABEDIAN

v.VITTI.

Supreme Judicial Court of Massachusetts, Middlesex.

May 29, 1928.

Appeal from District Court of Newton; Thomas Weston, Special Judge.

Action by Carmen A. Vitti against Haig S. Garabedian, and action by Haig S. Garabedian against Carmen A. Vitti. A decision in the first action was rendered for plaintiff, and in the second action judgment was ordered for defendant. Report was dismissed by the Appellate Division in each case, and Haig S. Garabedian appeals. Orders of Appellate Division affirmed.

J. A. Post, of Boston, for Garabedian.

H. S. Boyd, of Newton, for Vitti.

BRALEY, J.

The first action is to recover for labor performed and materials furnished in excess of the contract price for which the plaintiff agreed to build a single dwelling house and garage for the defendant. There was evidence warranting the findings by the trial judge, that the plaintiff did much extra work as shown by the account annexed to the declaration, the fair value of which was $1,888.26. The contract however contained the following provisions:

‘Deviations from Drawings, etc.

‘No deviation from the drawings and specifications shall be made in the execution of the work without the written approval of the architect.

‘Alterations.

‘The contractor agrees that the owner shall be at liberty at all times during progress of the work to direct any alterations to be made therein, and deviations from said drawings and specifications, without in any respect or particular varying this agreement or impairing its force, it being understood that in case any alterations or deviations are made, such further time shall be allowed for completion of the work caused by such alterations or deviations as the architect shall decide to be reasonable and such sums of money shall be paid the contractor in addition to the contract price, or subtracted from the contract price, as the case may be, as such work may be fairly worth. No alterations shall be made in the work nor extras or additions of any kind shall be recognized or allowed except upon written order of the architect. The amount to be paid by the owner or allowed by the contractor by virtue of such alterations, extras or additions to be stated in the order. Should the owner and contractor not agree as to the amount to be paid or allowed, the work shall go on under the order required above, the determination of said amount shall be referred to arbitration. The architect shall have the power to direct any changes in the construction as they may think desirable or necessary during progress of the work provided the same shall involve no additional expense.’

It was undisputed that no orders in writing were given by the architect and the defendant contends that by the express terms of the contract the plaintiff cannot recover. The plaintiff however testified and introduced evidence tending to show that the defendant was present with the architect at various times and saw the extra work being done, and made no objection. When the first extra work was in progress he asked the architect for a certificate but was told that no certificate was necessary. The plaintiff also testified that after the contract was signed he talked with the defendant with reference to certain work in the attic telling him it would cost more to make the proposed changes in the roof and attic than were shown by the plans. The record states that there was no express waiver. But the defendant...