Westfield v. Mayo

Decision Date07 March 1877
Citation122 Mass. 100
PartiesInhabitants of Westfield v. Amaziah Mayo
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Argued March 3, 1876; September 29, 1875; May 22, 1876 [Syllabus Material]

Hampden. Tort to recover the amount of a judgment paid bye the plaintiff to Mary J. Hanchett for injuries sustained by her upon a highway which the plaintiff was bound to keep in repair; and also $ 150, the expenses of the suit in which that judgment was recovered. Trial in the Superior Court without a jury, before Rockwell, J., who found the following facts:

Hanchett was injured on March 23, 1873, by falling upon loose bricks, lying on the sidewalk near the corner of King Street and Washington Street, in Westfield. Upon the lot at that corner, the Normal School boarding-house was building, and the bricks had fallen upon the sidewalk, from piles of bricks in a temporary shed which had been built by Rice & Gordon. This shed extended along Washington Street, with its end on King Street. The end of the shed was not strong enough to hold the piles of bricks, and they finally broke through, and many of them fell out upon the sidewalk and caused the injury. The negligence of the owner of the bricks, if he had placed and left them in that situation, was the cause of their falling upon the sidewalk. One Bush sold and delivered the bricks to the defendant Mayo, and upon unloading them from his wagon, placed them in these piles by the defendant's direction, where they remained several weeks till they fell. The bricks used by Rice & Gordon, in building the Normal School boarding-house, were taken from these piles, partly before and partly after the accident, but all the bricks in the piles were not used by them.

The defendant contended that by virtue of a contract in writing dated October 24, 1872, the material part of which was as follows, he was not the owner of the bricks at the time of the injury, but Rice & Gordon were the owners:

"The said Rice & Gordon hereby agree to do for the said Mayo all the brick work and plastering required by the plans and specifications for the completion of the Normal School boarding-house for the Massachusetts Board of Education, on its ground in Westfield, Massachusetts, in a good and workmanlike manner. And the said Mayo hereby agrees to furnish all stone necessary for the work, finished and ready to set, on the ground, and to furnish and deliver on the lot all brick necessary to complete the building, for the price of eleven dollars per thousand, to be paid him by the said Rice & Gordon, and he agrees to pay the said Rice & Gordon the sum of seventeen dollars per thousand for all bricks laid, the quantity to be determined by measurement, reckoning twenty-four bricks to the cubic foot, and to measure in and pay for all stone work at the same rate, and the sum of thirty-five cents per square yard for all plastering, and at the end of each month to pay eighty per cent. of the value of all that shall have been done as above, and the balance when the work shall have been finished. It is further agreed that said Rice & Gordon shall do any stucco work, or any work not mentioned in this contract which is required, for which they shall receive the market price. The said Mayo further agrees to furnish all boards necessary to build a suitable lime house and to cover brick and the walls. The said Mayo further agrees to have everything, which he is required by this contract to furnish, ready for use as fast as it shall be required by the said Rice & Gordon, for the most convenient and expeditious performance of their contract; and he further agrees to cause all the other work and materials of said building to be done and furnished at such time and in such manner as not to hinder or delay the said Rice & Gordon in carrying on their work as rapidly as they may desire to do, and he hereby agrees to pay them damage for any hindrance or delay arising from his failure to perform his contract as above."

The judge ruled, as matter of law, that, by the true construction of the contract, the property in the bricks had not, at the time of the injury, passed from the defendant to Rice & Gordon; and that the contract had no effect to relieve the defendant from his liability, growing out of his ownership of the bricks, and his negligently placing them in that position and suffering them to remain there until they fell and lay upon the sidewalk, causing the injury.

The plaintiff introduced in evidence two notices, sent to and received by the defendant during the pendency of the original action, requesting him to appear and defend the same, describing the action in one of the notices as brought by Hanchett in the Superior Court for this county for an injury received by her "from a defect in the highway in said Westfield, while travelling on the same, and which highway is described in her writ;" and, in the other notice, describing the action as brought for damages sustained by her "on the highway in front or near the site of the Normal School boarding-house in said Westfield." The defendant objected to their introduction in evidence, as not specifying the place of the injury with sufficient certainty; but the judge admitted them.

The judge ordered judgment to be entered for the plaintiff for the amount of the former judgment and interest, and also $ 150, which was agreed to have been expenses paid out by the plaintiff for counsel fees in the original action. The defendant alleged exceptions.

Exceptions overruled.

A. L. Soule, for the defendant.

G. M. Stearns, for the plaintiff.

Morton, J., Lord, J. Ames, Devens, JJ., absent.

OPINION

Morton, J.

This case was tried by the court without a jury, and the presiding justice has found, upon the evidence, that the defendant was the owner of a quantity of bricks, and that by his negligence they fell upon the sidewalk, and created the obstruction for which the plaintiff was held liable as alleged in its declaration. The defendant put in the written contract between him and Rice & Gordon, of which a copy is annexed to the bill of exceptions, and contended that by virtue of this contract the property in the bricks had passed to Rice & Gordon; but the court ruled that, by the true construction of the contract, the property had not passed, at the time of the injury for which the plaintiff was held liable, and that it had no effect to relieve the defendant from his liability growing out of his negligence as owner.

The only question of law presented on this part of the case is, whether, by virtue of that contract, the property in the bricks passed to Rice & Gordon when they were placed in the shed built by them on the grounds upon which they were at work, and we are of opinion that it did not.

The contract provides, in substance, that Rice & Gordon shall do for the defendant the brick work of the Normal School boarding-house, that the defendant shall furnish and deliver on the lot the necessary brick for the price of $ 11 per thousand, and that he shall pay Rice & Gordon $ 17 per thousand for all bricks laid, eighty per cent. to be paid at the end of each month and the balance when the work was finished. It is evident that this arrangement was adopted as a mode of computing the price which Rice & Gordon were to be paid for laying the brick, and that a sale of the brick to them was not contemplated by the parties. Mayo was only required to furnish the brick as fast as it was required for the work. The fact, that he anticipated the work by putting upon the lot a large quantity at once, would not give Rice & Gordon any title to the bricks. He might use the bricks or any portion of them for other purposes, and they could not complain, provided he furnished suitable bricks as fast as their work required. A part of the bricks put upon the lot by Mayo was not used in the building. Can it be contended that these passed to Rice & Gordon, and that Mayo can charge them in his final settlement?

We are of opinion that no title in the bricks passed to Rice & Gordon by virtue of this contract, and that she ruling of the Superior Court upon this point was correct.

The exception to the admission of the notices to the defendant to take upon himself the defence of the suit against the town, is not well founded. If the first notice was insufficient, the second was as full and precise as was necessary, and was sufficient. Milford v. Holbrook, 9 Allen 17. Boston v. Worthington, 10 Gray 496 It was, therefore, rightly ruled that the plaintiff was entitled to judgment.

But whether the judgment should include the amount of the expenses paid by the town in defending the former action, is a question of some difficulty and of much importance in practice, which was hardly touched in the arguments at the bar, and upon which the court desires the assistance of a further argument by counsel.

Case to stand for further argument accordingly.

Upon this point written arguments were submitted May 22, 1876, and were considered by all the judges.

A. L. Soule, for the defendant, cited Nowell v. Roake, 7 B. & C. 404; Symonds v. Page, 1 Cr. & J. 29; Doe v. Hare, 2 Dowl. P. C. 245; Wrightup v. Chamberlain, 7 Scott 598; Penley v. Watts, 7 M. & W. 601, 609; Leffingwell v. Elliott, 10 Pick. 204; Barnard v. Poor, 21 Pick. 378, 381; Reggio v. Braggiotti, 7 Cush. 166.

G. M. Stearns, for the plaintiff, cited Aslin v. Parkin, 2 Burr. 665; Lewis v. Peake, 7 Taunt. 153; Pennell v. Woodburn, 7 C. & P. 117; Pow v. Davis, 1 B. & S. 220; Smith v. Compton, 3 B. & Ad. 407; New York State Marine Ins. Co. v. Protection Ins. Co. 1 Story 458; Clark v. Carrington, 7 Cranch 308; French v. Parish, 14 N.H. 496; Levitzky v. Canning, 33 Cal. 299; Marlatt v. Clary, 20 Ark. 251; New Haven & Northampton Co. v. Hayden, 117 Mass. 433.

Lord J. ...

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