White v. McLaren

• Decision Date: 08 June 1890
• Citation: 24 N.E. 911,151 Mass. 553
• Parties: WHITE et al. v. McLAREN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 553

24 N.E. 911

WHITE et al. v. McLAREN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 8, 1890

Action on a contract for erection of a building. The specifications were not signed by the parties. The putting on of the roof was sublet by the defendants to one Martin, a roofer, and the architect changed the plan and design of it after it was sublet. There was some delay in the completion of the building, and the roof leaked, and claims by plaintiffs were made for damages, and an agreement was made whereby the sum of $400 was deducted from the payment as compensation for damages claimed at that time. The roof afterwards leaked, and the plaintiffs on January 29, 1886, notified defendants by letter, and again by postal card on February 4th, but got no response. The roof continued to leak, and the plaintiffs in May, 1886, repaired it. The plaintiffs, after showing the condition of the roof, and necessary expenses to repair the same, introduced evidence tending to show injuries to the paper, paint, wood-work, etc., inside, resulting from the leaking, which was admitted under the objections of defendants. Evidence by plaintiffs to show a loss of rents by reason of the leaks in the roof, the loss accruing from the whole time between December and the month of May, when the roof was finally repaired by the plaintiffs, was admitted by the court, against the objections of defendants. The court found as a fact, and ruled as a matter of law, that there was no implied contract to make the roof tight. The defendants among other requests for rulings, made the following, which were refused: (1) That the specifications, not having by express agreement been made a part of the contract, cannot be so considered, except so far as the same may be alluded to for the kind of materials and work to be done. (2) That the plaintiffs cannot recover upon an express warranty contained in the list of specifications used. (3) The plaintiffs in no event can recover upon an express warranty that the roof shall be tight for a term of years, or for any time contained in said specifications. (4) That in no event can a recovery for breach of express warranty that the roof shall be tight for a specified time be had for more than would be the fair and reasonable cost of making a tight roof according to the contract. (6) If the design of the work and plan were materially altered after commencement of work under the contract, and no written agreement was entered into changing or altering the original agreement, then the parties were relieved from the written contract. (7) If the architect gave orders to a subcontractor, under contract to find the material, to do the work upon the roof to change the construction of the roof in a material manner as to form and design, and if there was a subsequent change of plan after the letting of the subcontract to construct the roof in a material part, then the defendants were relieved from all liability for such work, both as to workmanship and as to warranty. (8) That, if any liability exists for improper workmanship upon the roof, it is that of the subcontractor who actually performed the work, and such damages as were caused to the building itself. (9) Upon a breach of warranty that the roof is tight, and upon a warrant for a term, the measure of damage is what it would fairly and reasonably be worth to make the roof tight according to the contract. (10) In no event can damages in this action be awarded for loss of rents. (11) In no event can damages in this action be awarded for damage to the building by water. (12) Under the contract, there is no express warranty or guaranty to make a tight roof. The court found, among other things, that the leakage was not caused by the change in the plan of the roof; that the roof as finally constructed would not have leaked if proper materials and workmanship had been used in its construction; it was more difficult to construct, so as to prevent its leaking, than it would have been under the original plan; that the guaranty that the roof should be tight for one year was not waived by the plaintiffs; that the allowance of $400 was not in settlement and discharge of the guaranty; that all that was included in the settlement in which $400 was allowed was a loss, by reason of the house not being completed at the time stipulated, and the damage done by leakage of the roof up to that time; that both parties at the time of settlement believed that the roof was tight and satisfactory, and it was not supposed by either party that it would leak; and that the minds...