Welch v. Mcneil

• Decision Date: 20 May 1913
• Citation: 101 N.E. 985,214 Mass. 402
• Parties: WELCH v. McNEIL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 402

101 N.E. 985

WELCH v. McNEIL.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1913

COUNSEL

Elisha Greenhood, of Boston, for plaintiff.

I. R Clark and G. F. Ordway, both of Boston, for defendant.

OPINION

MORTON J.

This is an action of contract to recover upon an account annexed with a declaration in set-off by the defendant. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant.

The chief item in dispute relates to a quantity of sand for which the plaintiff seeks to hold the defendant accountable. The auditor found against the plaintiff in regard to this item. The defendant asked the court to instruct the jury that on all the evidence the plaintiff was not entitled to recover for any part of the sand. The court refused so to rule and subject to the defendant's exceptions, left the question of the plaintiff's right to recover to the jury, who found for the plaintiff. We think that the court dealt with the matter correctly.

The defendant was the general contractor with the county of Norfolk for the construction of the new Registry of Deeds building. The plaintiff was a subcontractor under the defendant. He was to do the excavating, grading and the rough stonework, and was required 'to cart away and dispose of all soil, rocks, etc., left over from the excavations and filling.' This provision was also in the defendant's contract with the county. The land on which the building was to be erected belonged to the county. The sand in question was part of the material which under his contract with the defendant the plaintiff was obliged to excavate and cart away and dispose of. In making the excavation required he had dug it out and had piled it up on the premises preliminary, as could be found, to selling it or otherwise disposing of it. The sand originally belonged to the county as part of the land from which it was taken. It is not contended by the defendant that the contract between him and the county operated as a conveyance to him by the county of an interest in the land. Except for the provision in the contract that soil left over from excavations and filling shall be carted away and disposed of, the sand would have belonged to the county. But no claim to it is made or has been made by the county and the effect of the provision referred to is to operate, we think, as an abandonment of the sand by the county to the party making the excavations. The defendant did not excavate the sand in question and there is nothing in the contract between him and the plaintiff which gives him any claim to it. It is difficult to see what ground he has on which to base a right to it or to any part of it. There was testimony in regard to custom before the auditor and the auditor found either on the ground of custom or as matter of law that as between contractor and subcontractor each was entitled to use the sand required for his purposes, and that neither was entitled to charge the other for the sand so used. But at the trial all evidence of custom was excluded by the court without any exception being saved, and the rights of the parties were left to be determined independently of custom, if there was any. As the case stands, looked at from any point of view, we do not see why there was not evidence warranting a finding for the plaintiff. The ruling...