Whitworth v. Lowell

• Decision Date: 27 February 1901
• Parties: WHITWORTH v. LOWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

178 Mass. 43

59 N.E. 760

WHITWORTH v. LOWELL.

Supreme Judicial Court of Massachusetts, Worcester.

February 27, 1901

The following is the master's report:

'In pursuance of the order of the court referring the above-entitled cause to me as master, I have met the parties thereto and their counsel, heard their evidence examined their vouchers, and make the following report First. In the month of January, 1898, the plaintiff and the defendant had a conversation in relation to the plaintiff's installing a heating plant in a building then being erected by the defendant in the city of Worcester. After some discussion of the subject, defendant referred the plaintiff to his engineers, Lewis & Claflin of Providence, Rhode Island, under whose supervision the building was being erected. Subsequently W. B. Lewis, of the firm of Lewis & Claflin, sent or gave to the plaintiff a paper containing certain specifications in regard to heating the defendant's building; a copy of said specifications being annexed to plaintiff's bill, marked 'A.' Second. On or about the 28th day of January, 1898, the plaintiff gave or sent to said Lewis an unsigned proposal or agreement concerning the said heating, a copy of which is annexed to plaintiff's bill and marked 'B.' Between the time of the first conference between plaintiff and defendant and the 8th day of February, 1898, the plaintiff and said Lewis had several conversations relating to installing the heating plant, but no definite agreement or understanding in relation thereto was reached prior to the 8th day of February, 1898. A few days prior to February 8, 1898, the plaintiff was informed by one Parker, acting for said Lewis, that he (Lewis) had decided to give him a job on the bid and to go to work on it, and that he would be up in a few days and fix up the contract. The plaintiff thereupon commenced, and worked three or four days on the job prior to February 8, 1898. Third. On the 8th day of February, 1898, said Lewis drew up in writing an agreement for the plaintiff and defendant to sign, a copy of which agreement is annexed to plaintiff's bill, marked 'C,' excepting the following words: 'providing circumstances beyond our control do not interfere.' Said Lewis gave said agreement to the plaintiff to read and consider. The plaintiff, after reading said agreement, expressed a desire to have incorporated into it the provision, 'providing circumstances beyond our control do not interfere.' Said Lewis assented to this, and the plaintiff thereupon took the agreement to a typewriter, and, after the insertion of the above provision, had the same set in type. The plaintiff then signed the said agreement and took it to the defendant, who also, after reading it, signed it. A copy of said agreement is annexed to plaintiff's bill, marked 'C.' I find that the defendant never saw the specifications, A, nor the unsigned agreement, B, until this hearing, and that the only paper or agreement he had any knowledge of was the contract, C, signed by him. Fourth. I find that the plaintiff had opportunity to fully consider and understand the terms of said agreement, C. I do not find that said Lewis practiced any deception or fraud in obtaining the plaintiff's signature to said agreement. Fifth. I find that after the plaintiff had put in some portion of the heating plant, and long before the same was completed, said plaintiff was suspicious that the agreement was not what he thought it was at the time of signing it, and a doubt arose in his mind as to whether the sum of nine hundred and sixty-five dollars ($965) was to be deducted from the two thousand two hundred and sixty dollars ($2,260), or added to that sum, in case the three top floors were furnished with heating appliances. The plaintiff did not inform the defendant or Lewis of his doubt or suspicion, but continued on in the work of installing the plant, assuming that the contract meant that the $965 was not to be deducted from the $2,260, but to be added thereto in case the three top floors were furnished with heating appliances. Sixth. The plaintiff, after the signing of said agreement, proceeded with the work contemplated, and furnished material and work for heating purposes in said building, except in the three top floors, substantially in accordance with the specifications and agreement. Seventh. After the completion of the heating plant the plaintiff called upon the defendant for a settlement of the account, claiming that he understood that he was to receive $2,260 for installing the plant on the two lower floors. The defendant denied this construction of the contract, and claimed that the contract was for $2,260, less $965 for the three top floors, which had not been furnished with heating apparatus. Eighth. I find that the plaintiff supposed at the time he signed contract C that he was to receive $2,260 for installing the heating plant on the two lower floors, and that he was mistaken in the meaning and purport of the agreement, C. Ninth. The evidence fails to satisfy me that either the defendant or defendant's engineer, Lewis, understood that the agreement was for $2,260 for the two lower floors. Tenth. I therefore find that the failure to limit or confine the contract price of $2,260 to the two lower floors was not an accident, was not procured by fraud, and was not a mutual mistake of the parties to the contract. Eleventh. Upon the foregoing findings of fact, I rule, as a matter of law, that the plaintiff is not entitled to have said contract, C, reformed, and that the defendant entitled to have the nine hundred and sixty-five dollars ($965) deducted from the twenty-two hundred and sixty ($2,260), leaving the sum of twelve hundred ninety-five dollars ($1,295), as the amount the plaintiff is entitled to receive under agreement C. Twelfth. I find that the said heating plant has been in operation in the defendant's building since May, 1898, and that the plaintiff is not now entitled to rescind the contract on the ground that the defendant cannot be placed in statu quo. Thirteenth. I find that the plaintiff completed said contract subsequently in accordance with the specifications and the plans. I find that there were some minor defects in the heating plant, which the defendant was compelled to remedy, and that for some time after the installation of the plant it did not work satisfactorily; but in view of the fact that heating large buildings is not an exact science, and that all heating systems are more or less unsatisfactory, I do not think sufficient variations from specifications and sufficient damages have been proved to warrant any recoupment from the contract price. Fourteenth. I find that the plaintiff furnished certain

...