Wallis v. Inhabitants of Wenham

• Decision Date: 05 January 1910
• Citation: 204 Mass. 83,90 N.E. 396
• Parties: WALLIS et al. v. INHABITANTS OF WENHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 83

90 N.E. 396

WALLIS et al. v. INHABITANTS OF WENHAM.

Supreme Judicial Court of Massachusetts, Essex.

January 5, 1910

The material provisions of the contract are as follows:

'The contractor shall prosecute the work speedily and continuously and the entire work covered by this contract shall be finished by the 1st day of January, 1907. The damages for default are fixed at $10 for every day thereafter that the said work shall remain unfinished.

'The contractor shall permit other contractors or employés of the owner to prosecute their work, and shall render them all necessary assistance.

'If in the opinion of the architect, the contractor is obstructed or delayed in the prosecution or completion of the work by the neglect, delay or default of any other contractor, or by any damage which may happen thereto by fire or by the unusual action of the elements or by the abandonment of the work by the employés in a general strike, then the contractor shall be entitled to such extension of the time specified above for the completion of the work as the architect shall in writing certify, provided, however, that claim is made by the contractor at the time and in writing.'

The court refused to rule as requested by plaintiffs as follows:

'That if the defendant requested the plaintiffs to delay operations under their contract for such a time as prevented them from completion of the work on the 1st day of January, 1907, then the plaintiffs were not liable to the defendant for the penalty provided in the contract and the defendant is not entitled to set off any damage for delays under such clause.

'That if the defendant by its actions caused any postponement of the completion of the work beyond the time set in the contract, that the plaintiffs were thereby relieved altogether from the penalty of $10 per day provided for in the contract.'

COUNSEL

D. N. Crowley and Geo. C. Donaldson, for plaintiffs.

Alden P. White, for defendant.

OPINION

SHELDON J.

The plaintiffs contend that the acts of the defendants in causing delay in the execution by the plaintiffs of their contract resulted as matter of law in abrogating the time limit fixed by the agreement of the parties, and left the plaintiffs under no further obligation as to this matter than the duty of completing the construction of the building within a reasonable time. They also contend that for any failure on their part to complete their work within a reasonable time they could be held only for the actual damages shown to have been caused thereby to the defendants, and not for the liquidated damages fixed by the original agreement. There are some decisions, and some dicta in other decisions, which sustain their contention. Dodd v. Churton, [1897] 12 Q. B. 562; Holme v. Guppy, 3 M. & W. 387; Willis v. Webster, 1 A.D. 301, 37 N.Y.S. 354; Graveson v. Tobey, 75 Ill. 540. And we understand it to be universally agreed that under such an agreement as this the owner cannot hold the contractors liable in the amount of the stipulated damages for any delays which have been due to his own fault. Russell v. De Bandeira, 13 C. B. N. S. 149; Kenny v. Monahan, 169 N.Y. 591, 62 N.E. 1096, affirming s. c. 53 A.D. 421, 66 N.Y.S. 10; Home Bank v. Drumgoole, 109 N.Y. 63, 15 N.E. 747; Marsh v. Kauff, 74 Ill. 189; Palmer v. Stockwell, 9 Gray, 237; Amoskeag Manuf. Co. v. United States, 17 Wall. 592, 21 L.Ed. 715. But in many of the decisions in which contractors have been completely exempted from such liquidated damages for a failure to finish the whole work within the stipulated time it has been either assumed or found as a fact that the whole of the delay was due to the fault of the owner or of persons for whose conduct the owner was responsible. Ludlum v. Vail, 166 N.Y. 611, 59 N.E. 1125, affirming s. c. 53 A.D. 628, 65 N.Y.S. 834; Perry v. Levenson, 82 A.D. 94, 81 N.Y.S. 586; Boden v. Maher, 105 Wis. 539, 81 N.W. 661; Weber v. Collins, 139 Mo. 501, 41 S.W. 249; White v. Fresno Bank, 98 Cal. 166, 32 P. 979; Erickson v. United States (C. C.) 107 F. 204; Altoona Electric Co. v. Kittaning Street Railway (C. C.) 126 F. 559; District of Columbia v. Camden Iron Works, 15 App. Cas. D. C. 198; Dunavant v. Caldwell & Northern Railroad, 122 N.C. 999, 29 S.E. 837. So in Cornell v. Standard Oil Co., 91 A.D. 345, 86 N.Y.S. 633, the contractor finished the work as soon as the owner allowed him to do it. This was the priciple applied in Champlain Construction Co. v. O'Brien (C. C.) 117 F. 271, in which the owner was found to be principally at fault for the delay which had occurred, but it was impossible to apportion the responsibility between him and the contractor. In other cases it appeared that the owner had not performed certain obligations on his part which, upon the proper construction of the contract, were found to be conditions precedent to the obligation of the contractor to finish his work by the stipulated time or pay the liquidated damages for his delay. The most frequent example of such a construction occurs when the contractor's agreement to have his work completed at a stipulated period and in default thereof to pay liquidated damages at a fixed rate is accompanied by an engagement of the other party that full opportunity to begin and prosecute the work shall be given to the contractor on or before some previous fixed day. Until the condition precedent has been performed the liability of the contractor under the agreement as to the time of completion does not accrue. Gilbert & Barker Manuf. Co. v. Butler, 146 Mass. 82, 84, 85, 15 N.E. 76; Dannat v. Fuller, 120 N.Y. 554, 24 N.E. 815; Weeks v. Little, 89 N.Y. 566; Granbery v. Gardner, 51 A.D. 610, 64 N.Y.S. 131; Deeves v. New York (Super. N. Y.) 17 N.Y.S. 460; Long v. Pierce County, 22 Wash. 330, 61 P. 142; Standard Gaslight Co. v. Wood, 61 F. 74, 9 C. C. A. 362. In other cases the delay for which the owner was responsible had so altered the circumstances--for example, by postponing the construction to a more unfavorable season of the year--as to make it manifest upon a fair construction of the agreement that the parties could not have intended that the stipulations as to time should still remain in force. King Iron Bridge & Manuf. Co. v. St. Louis (C. C.) 43 F. 768, 10 L. R. A. 826; Lauer v. Brown, 30 Barb. (N. Y.) 416, 420; Haughery v. Thiberge, 24 La. Ann. 442; Gutmann v. Crouch, 134 N.Y. 585, 31 N.E. 275. See Drumheller v. American Surety Co., 30 Wash. 530, 71 P. 25.

In the case at bar, however, none of the special circumstances above stated have been found to exist. The plaintiffs chose to make an agreement that their entire work should be finished by January 1, 1907, and in default thereof that they would pay the sum of $10 for each day thereafter while the work should remain unfinished. They made this agreement absolutely subject only to the exception that in certain contingencies, upon their written request, they might be allowed such additional time as the architect in charge of the work should certify. It is not claimed that this exception is now material to be considered....