321 Mass. 538 | Mass. | 1947
This suit in equity was brought in the Superior Court. The plaintiff is the Boylston Housing Corporation. The suit, as alleged in the bill, was brought
From undisputed evidence it appeared —■ and it is not controverted — that the members of the Building and Construction Trades Council of the Metropolitan District — • herein referred to as the council — were delegates from various trades unions, of which there were fifty-nine, the members of which were engaged in the building crafts in and around Boston, that one of the unions was composed of members of the craft dealing with or working on the installation and construction of electric elevators and was named Local #4 of the International Union of Elevator Con
When this suit was brought on July 29, 1940, the plaintiff “was engaged in remodelling a four-story building at 1089 Boylston Street [Boston], by converting it into a five-story building with forty-three suites with kitchenettes. This was to be accomplished by constructing a new entrance in to what had been the basement and a general internal rearrangement which did not affect the walls or solid structural parts of the original building.” “The work was in charge of Harry Moskow, a brother of the president and treasurer of the plaintiff, and was begun about the last of December, 1939, or the first of January, 1940.” The plaintiff sought by this suit to have the “defendants” temporarily and permanently enjoined from interfering with the work of remodelling this apartment house, particularly from interfering with the carrying out of a contract of the defendant Otis Elevator Company with the plaintiff to install in said. building an electric elevator, and from interfering with the carrying out of a contract of the defendant W. S. Tyler Company with the plaintiff to install in said building five elevator fronts and entrances and an elevator car. The plaintiff sought also to have the “defendants” temporarily and permanently enjoined from interfering with the work of the plaintiff on any other building. An interlocutory decree was entered, after hearing, temporarily enjoining the labor defendants from “interfering with and preventing the fulfillment of • the contract between the plaintiff and the defendant Otis Elevator Company and the contract between the plaintiff and the defendant W. T. [S.] Tyler Company.” There was no appeal from this interlocutory decree. The defendant" W. S. Tyler Company, by amendment, inserted in its answer a counterclaim for breach by the plaintiff of its contract With this defendant. Thereafter the
First. We consider first whether the plaintiff is entitled to recover damages against the labor defendants or any of them.
1. Since the work on this apartment house was completed before the hearing on the merits, there was not at that time and is not now any occasion for injunctive relief against any of the labor defendants with respect to the work on this apartment house. However, it is elementary “that a plaintiff who had good ground for injunctive relief when the bill was filed, but who has lost his right thereto pending the suit, may have the bill retained for an award of damages.” Simon v. Schwachman, 301 Mass. 573, 583-584, and cases cited. This principle is applicable even though the bill contains no prayer for damages. The bill in the present case contains a prayer for “such other and further relief as may be proper.” Under such a prayer, damages may be awarded. See E. Kronman, Inc. v. Bunn Bros. Inc. 258 Mass. 562, 568. Indeed, a prayer for general relief is read into the bill. G. L. (Ter. Ed.) c. 214, § 12. Hubrite Informal Frocks, Inc. v. Kramer, 297 Mass. 530, 535.
2. The question for determination is whether the plaintiff is entitled to the relief of damages against the labor defendants, or any of them, springing “out of what . . . [the plaintiff] was entitled to when the bill was filed.” See
3. The plaintiff seeks to recover damages from the labor defendants for loss of rents of the apartment house, caused by delay in the completion of the elevator therein from April 8, 1940, to October 31, 1940, and delay in the completion of the front entrance. There was evidence of' loss of rents resulting from delay in the completion of the elevator, and we assume in favor of the plaintiff that it sustained some loss of rents by reason of such delay, and proceed to consider whether such delay was caused in whole or in part by the wrongful conduct of the labor defendants or any of them. Whether any loss of rents resulted from delay in the completion of the front entrance to the building, apart from delay in the completion of the elevator, is conjectural upon the evidence. For the purpose of determining damages, it is unnecessary to consider the lawfulness of unlawfulness of conduct of the labor defendants that did not contribute to delay in the completion of the elevator.
4. The plaintiff contends that the trial judge at the hearing of this suit for the entry of the final decree was precluded, by a decree, entered by another judge of the Superior Court upon a finding of facts made by him including a finding that certain of the labor defendants “are actively preventing the fulfillment of the Otis Co. and the Tyler Co. contracts and unless restrained will continue to do so” and after a decree of a justice of this court upon a report under G. L. (Ter. Ed.) c. 214, § 9A (6), inserted by St. 1935, c. 407, § 4, that the case “does not involve or grow out of a labor dispute within the meaning of G. L. (Ter. Ed.) c. 149, § 20C, inserted by St. 1935, c. 407, § 1,” from considering the mat
5. In the reconstruction of its building, as the judge properly found, the plaintiff “was hiring such labor as it could by the hour from nonunion sources . . . and for such portions of the work as could not be so performed was employing contractors without reference to their status as union or nonunion.” The work upon the elevator was covered in part by each of two contracts. One of these contracts was between the plaintiff and the defendant Otis Elevator Company. This contract was made on February 8, 1940, and was a contract that this defendant would “furnish and erect” the “elevator installation” according to certain specifications, which did not include furnishing and installing the elevator entrances or furnishing the elevator car. By this contract the defendant Otis Elevator Company agreed that the “apparatus shall be in complete running order by April 8, 1940,” but the agreement for completion by that date was subject to the performance of other work, particularly to the hoistway being made ready for uninterrupted use by this defendant, and to the elevator car being furnished so that it could be installed by the defendant. The other contract was between the plaintiff and the defendant W. S. Tyler Company. This contract was made
6. With respect to the progress of the work, the judge found —. and his findings were not plainly wrong — that it "appeared that for the performance of . . . [the contract of February 8, 1940, of the plaintiff with the defendant Otis Elevator Company, already referred to] the use of the hoist-way was necessary for from four and a half to five weeks. The defendant Otis Elevator Company started manufacturing material within a week and no delay was caused in this respect. On March 27, 1940, word was received from Moskow that the hoistway was ready and the work of installation could have been begun then or a little before but union men were not available, and continued unobtainable . . . until after injunctive relief was granted to the plaintiff on September 23,1940 . . ..” (Italics supplied.) The "hoistway was ready for the Otis Elevator Company to begin work on March 25, 1940.” "The situation remained unchanged in respect to the Otis Elevator Company from March 25, 1940, to July 29, when the plaintiff filed this bill.” The "filing of this bill resulted on September 23, 1940, in a preliminary injunction requiring the defendants to desist from interfering with the performance of the contracts with Otis Elevator Company and W. S. Tyler Company . . . and both were completed by October 31.” "The contract [between the plaintiff and the defendant Otis Elevator Company] was to be completed by April 8, 1940, but the premises were not ready for the installation of elevators until March 25, and about four and a half weeks were required to complete it, making April 25 the earliest date upon which it could have been completed if there had been no difficulty in obtaining labor. On that date the elevator cage which was to be constructed by the W. S. Tyler Company, was not even contracted for, and when the contract was made on May 4,
7. The liability of the labor defendants or any of them for damages to the plaintiff for delay in the completion of the elevator depends, therefore, upon whether such delay after April 25, 1940, resulted wholly or in part from the nonavailability of members of Local #4 for that work and whether such nonavailability resulted from conduct of any or all of the labor defendants that was wrongful toward the plaintiff. Assuming in favor of the plaintiff that delay after April 25, 1940, in the completion of the elevator resulted wholly or in part from the nonavailability of members of Local #4 for work in installing the elevator, it is not shown that such nonavailability resulted from conduct of any or all of the labor defendants that was wrongful toward the plaintiff.
8. It does not appear that any member of Local #4 was bound by contract to enter the employment of the defendant Otis Elevator Company for work in installing the elevator. Clearly, no such member was under such a contractual obligation to the plaintiff. Nor was any such member under such a contractual obligation to the defendant Otis Elevator Company. There was no such contractual obligation apart from the “closed shop” agreement which the judge properly found existed between Local #4 and the de
9. The existence of a contract by the defendant Otis Elevator Company with the plaintiff, to which members of Local #4 were not parties, to install the elevator imposed no greater duty upon members of Local #4, acting singly, to enter the employment of the defendant Otis Elevator Company than they would have had in the absence of such. a contract, on the ground that failure or refusal of such a member to enter such employment would interfere with the performance of the contract. The parties to this contract could not by agreement between themselves impose upon members of Local #4 a duty, which did not exist in the absence of such contract, to enter the employment of the defendant Otis Elevator Company. Interference with the performance of this contract by the mere refusal of individual members of Local #4 to do what they were not bound to do, that is, to enter the employment of the defendant Otis Elevator Company, would not be actionable irrespective of the intention that prompted such refusal. H. D.
10. Since no individual member of Local #4 was bound by contract to enter the employment of the defendant Otis Elevator Company for work in installing the elevator in the plaintiff’s building, no such member, in the absence of circumstances hereinafter considered, had any duty to enter such employment or would be guilty of any wrong to the plaintiff in refusing to enter such employment. Each such member, not being bound by contract to enter such employment, had the right in the absence of special circumstances to refuse to enter such employment “on any ground pleasing to himself” (Armstrong Cork & Insulation Co. v. Walsh, 276 Mass. 263, 273), including the ground that nonunion workmen were working on the building. “Every person has a legal right to dispose of his own labor as he wishes, and to work for whom he pleases. He may refuse to work with another because that person is distasteful to him, or for any other reason. Plant v. Woods, 176 Mass. 492, 498. Pickett v. Walsh, 192 Mass. 572, 582.” Mechanics Foundry & Machine Co. v. Lynch, 236 Mass. 504, 505. This right is not in' conflict with or subordinate to the right of the defendant Otis Elevator Company, or of the plaintiff, to a “free flow of labor” for employment by the defendant Otis Elevator Company for work on the plaintiff’s building. The “right to a free flow of labor” is a right “to which every member of the community is entitled for the purpose of carrying on the business in which he or it has chosen to embark” (Haverhill Strand Theatre, Inc. v. Gillen, 229 Mass. 413, 418), that is, the right of a member of the community “at all times to hire in the labor market, and to retain in . . . [its] employment, such workmen as . . . [it] might choose.” Folsom Engraving Co. v. McNeil, 235 Mass. 269, 277. See also W. A. Snow Iron Works, Inc. v. Chadwick, 227 Mass. 382, 389; Yankee Network, Inc. v. Gibbs, 295 Mass. 56, 60. The right of a prospective employer to a “free flow of labor,” however, is not a right to employ workmen who, for any reason, do not wish to enter such employment. It is merely a right to be free from unlawful
11. No circumstances are shown that precluded individual members of Local #4 from refusing to enter the employment of the defendant Otis Elevator Company for work in installing the elevator in the plaintiff's building. It was not unlawful for such members to act through the defendant Kelley, the business agent of Local #4, in refusing to enter such employment. And they were not precluded from acting jointly in refusing to enter such employment. It is, of course, true that there “are things which it is lawful for an individual to do which it is not lawful for a combination of individuals to do.” Pickett v. Walsh, 192 Mass. 572, 582. See also Cornellier v. Haverhill Shoe Manufacturers’ Association, 221 Mass. 554, 561; A. T. Stearns Lumber Co. v. Howlett, 260 Mass. 45, 56. The basis for this principle is that a number of individuals acting in combination may have a power of harm or of coercion not possessed by any such individual acting singly. See Neustadt v. Employers’ Liability Assurance Corp. Ltd. 303 Mass. 321, 325. The gist of the wrong in concerted action where individual action would be lawful is conspiracy, and the fundamental question is whether there was a combination which “overstepped legal bounds in the object sought or the means used to carry it out.” Robitaille v. Morse, 283 Mass. 27, 31. But a refusal by the defendant members of Local #4 to enter the employment of the defendant Otis Elevator Company was conduct “such as any individual might employ in his business with impunity even though damage might result thereby to another . . . unless the defendants, acting jointly, had some unlawful object in view” in such refusal. Neustadt v. Employers’ Liability Assurance Corp. Ltd. 303 Mass. 321, 325. See also Foster v. Shubert Holding Co. 316 Mass. 470, 475. It is not shown that the members of Local #4 had any unlawful object in view in refusing to enter the employment of the defendant Otis
12. The plaintiff was free to contract for the installation of the elevator with any concern willing to enter into a contract for that work. It elected to contract with the defendant Otis Elevator Company, but the fact that it so elected did not impose upon members of Local #4 any duty to enter
13. The judge found “that whatever trouble or delay was occasioned on the job was due to the adherence of the organizations of which they [the labor defendants] were members to a general policy not to allow union labor to work on nonunion or open jobs.” This finding, as applied to members of Local #4, imports that their refusal to enter the employment of the defendant Otis Elevator Company — so far as they did so by authorizing or acquiescing in the refusal of the defendant Kelley, the business agent of Local #4, to furnish members of Local #4 for such employment — was for the object of adhering to a general policy and not for the object of injuring the plaintiff or anyone. This “general policy” as applied to Local #4 was a policy that this organization would not furnish members thereof for “work on nonunion or open jobs,” but does not include a policy of coercing such members to refuse to work on such jobs. The finding that Local #4 adhered to this “general policy” does not import that it or its members coerced any of its members to refuse to work on any such job. And the evidence does not show such coercion of any members of Local #4 to refuse to enter the employment of the defendant Otis Elevator Company for work in installing the elevator in the plaintiff’s building. It is urged by the plaintiff that there
14. From the fact that there was no "conspiracy,” as the judge properly found, it follows that there was no "strike.” Moreover, since the members of Local #4 were not employees of the defendant Otis Elevator Company, obviously they did not cease to work for this defendant upon its contract with the plaintiff or upon any other work for this defendant and did not combine to cease to do such work. The basic element of a "strike” — the concerted cessation of work by employees for their employer — therefore was absent (see Simon v. Schwachman, 301 Mass. 573, 576; Jeffery-De Witt Insulator Co. v. National Labor Relations Board, 91 Fed. [2d] 134, 138; C. G. Conn, Ltd. v. National Labor Relations Board, 108 Fed. [2d] 390, 396-397; The Point Reyes, 110 Fed. [2d] 608, 609-610; Uden v. Schaefer, 110 Wash. 391, 394, 11 Am. L. R. 1001, 1003; Restatement: Torts, § 797, comment a) and it is not necessary to consider other essential elements of a “strike.” The situation in this respect is different from that in Yankee Network, Inc. v. Gibbs, 295
15. It follows from what has been said that the plaintiff is not entitled to recover damages from any of the members of Local #4 referred to in the bill solely by description. Since it is not shown that members of Local #4, described in the bill merely as such members, even acting jointly or jointly with other members of Local #4 named in the bill, acted wrongfully toward the plaintiff, it is not necessary to consider as to any individual member referred to in the bill merely as such whether he participated in, authorized or ratified such joint action. See Quinton's Market, Inc. v. Patterson, 303 Mass. 315, 320-321.
16. Two members of Local #4 are referred to in the bill, as amended, by name as defendants — Edward Lanphier and Edward I. Kelley, "individually and as they are respectively the financial secretary and the business representative of Local #4 of the International Union of Elevator Constructors.” No facts are shown that render either of these defendants liable in damages to the plaintiff by reason of the nonavailability of members of Local #4 for the work of installing the elevator in the plaintiff’s apartment house under the contract of the defendant Otis Elevator Company with the plaintiff for such installation.
17. The duties of the defendant Kelley as the business agent of Local #4 as prescribed by the by-laws of Local #4. included the duties to "have a general supervision over the affairs of the organization,” to "care for the interests of the organization in their dealings with other unions and with central bodies,” to "investigate all complaints made to him and act in accordance with the instructions of the organization,” to "make a written report at each regular meeting, showing the condition of trades,” to "endeavor by all honorable means to secure employment for members out of work,” and to "endeavor to visit all work in course of erec-
The judge was not plainly wrong in finding that the “construction manager [of the defendant Otis Elevator Company], Mr. Brown, [before the contract between the plaintiff and the defendant Otis Elevator Company was made on February 8, 1940] held a telephone conversation with the defendant Kelley, in which Brown inquired if he could get men for the job and was told that if any union crafts were permitted on the job by the Building Trades Council, elevator mechanics could work there,” and that on “March 27, 1940, word was received from Moskow that the hoistway was ready and the work of installation could have been begun then or a little before but union men were not available, and continued unobtainable, after frequent conferences with Kelley, until after injunctive relief was granted to the plaintiff on September 23, 1940, because at no time before that date did the Building Trades Council give its sanction to any of its affiliated unions for union men to work on the plaintiff’s job” (according to the evidence, the conferences with Kelley herein referred to were conducted or at least participated in by Brown), and that the “situation remained unchanged in respect to the Otis Elevator Company from March 25, 1940, to July 29, when the plaintiff filed this bill. Efforts were made both by Kelley and Otis Elevator Company to get permission from the Building Trades Council to use union men for the job, but that body continued in its refusal, although it may be inferred that if it could have been satisfied that there was no further work to be done
It is not shown that the defendant Kelley was guilty of any wrong to the plaintiff even if this defendant’s conversation and conferences with representatives of the defendant Otis Elevator Company amounted in substance to a refusal by him to furnish members of Local #4 for employment by the defendant Otis Elevator Company for the performance of work under its contract with the plaintiff. It is not shown that the defendant Kelley owed any duty to the plaintiff or to the defendant Otis Elevator Company to furnish members of Local #4 for employment for work in installing the elevator since it is not shown that he had authority from such members to furnish them, and it is not shown that refusal to furnish such members was in pursuance of a conspiracy to injure the plaintiff or constituted an unlawful interference with employment by the defendant Otis Elevator Company of members of Local #4. The refusal of the defendant Kelley to furnish members of Local #4 for work in installing the elevator, since he had no authority from them to furnish them for such employment, did not constitute an unlawful interference by him with employment by the defendant Otis Elevator Company of members of Local #4 for this work, even if it is not shown that he reported the application of the defendant Otis Elevator Company for members of Local #4 for such employment or that every member of Local #4 authorized or ratified such refusal. It appears, however, by uncontradicted evidence, which we accept as true, that he made comments on the situation on the job at a meeting of Local #4, and that the sense of Local #4 was in accordance with the policy of the council that members of Local #4 should not work upon the job.
Furthermore, it is not shown that the defendant Kelley was guilty of any wrong to the plaintiff by participating in the action of the council or its adjustment board in refusing to sanction the employment of members of Local #4 for this work. It appears that at a meeting of the adjustment board he voted in favor of sanctioning such employment but was outvoted. The judge found properly that efforts were made
18. It is not shown that the defendant Edward Lanphier was guilty of any wrong toward the plaintiff. It is not shown that as financial secretary of Local #4 he had any duty with respect to furnishing members of Local #4 for employment nor is it shown that he participated in the refusal to do so except as a member of Local #4 and it is not shown that he participated as such member. It is shown merely that he was present at a meeting of Local #4 in which the situation was commented on by the defendant Kelley, but it is not shown that he participated in the discussion of the situation at this meeting in which “the sense of . . . Local #4 was in accordance with the policy of the Building Trades Council.”
19. The other labor defendants are “Frank O’Toole, Ernest A. Johnson and Edwin E. Graves [for whom his ad-ministratrix has been substituted as defendant] . . . individually and as they are respectively the president, the secretary-treasurer, and the general agent of the . . . [council] . . . and all the other officers and members thereof.” No one of these defendants is liable in damages to the plaintiff.
20. The finding of the judge that there was no “conspiracy” imports that there was no conspiracy in which the officers and members of the council, referred to in the bill merely by such description and not by name, participated to injure either the plaintiff or the defendant Otis Elevator Company by rendering members of Local #4 unavailable for work under the contract for installing the elevator upon the plaintiff’s premises and was not plainly wrong. In the absence, as here, of any conspiracy, the members of Local #4 were free to refuse to enter the employment of the defendant Otis Elevator Company for such work for any reason that they pleased including the reason that such employment was not sanctioned by the council, and were free to leave to the council the determination whether members of Local #4 should enter such employment. It is not shown that any member or officer of the council, referred to in the bill as
21. The defendant O’Toole is not liable in damages to the plaintiff. He was the business agent of the Plasterers’ Union, a member of the adjustment board and member and president of the council. Though he attended some meetings of the adjustment board, it is not shown that he was present at the meeting at which it voted .not to sanction employment of members of Local #4 for work under the contract for installing the elevator upon the plaintiff’s premises. This defendant is not liable in damages to the plaintiff by reason of this action of the adjustment board in which he is not shown to have participated. It appears that the policy of the adjustment board with respect to the employment of union labor upon the plaintiff’s job was reported to the council and discussed by it at a meeting or meetings at which this defendant was present, but it is not shown that he individually or as a member of the council took any action to prevent the employment of members of Local, #4 by the defendant Otis Elevator Company, for work on the plaintiff’s job. Furthermore, the finding of the judge was not plainly wrong
22. The defendant Ernest A. Johnson is not liable in damages to the plaintiff. This defendant was a member of the adjustment board and a member and secretary-treasurer of the council. The case against Johnson is not different in substance from the case against the defendant O’Toole unless by reason of the fact that the defendant Johnson was present at the meeting of the adjustment board at which it was voted not to sanction the employment of members of Local #4 for work under the contract of the defendant Otis Elevator Company with the plaintiff in installing the elevator although it is not shown that the defendant Johnson voted either way upoii this question. Even if his presence at the meeting could be regarded as acquiescence in this vote, he was not guilty of any wrong to the plaintiff or to the defendant Otis Elevator Company in such acquiescence in the absence, as here, of any conspiracy in which he participated to injure either of them.
23. The defendant Edwin E. Graves, or his administra-trix, is not liable in damages to the plaintiff . There is no basis in the facts shown for liability. This defendant was the general agent of the council whose duty it was “to note ■ and report the conditions in the building and construction' industry relating to the erection, alteration, demolition and repair of all work.” He was a member of the adjustment board. It does not appear that he was a member of the council. The judge found properly that very “early in the progress of the work, the defendant Graves visited the
Second. Damages against the defendant Otis Elevator Company.
1. The plaintiff seeks to recover damages against the defendant Otis Elevator Company for loss of rents resulting from delay in completion of the performance of its contract for installation of the elevator.
2. By this contract, previously described herein, the defendant Otis Elevator Company agreed to install an elevator and the plaintiff agreed to do certain things including furnishing an elevator car and preparing a legal hoistway, and agreed to complete all of this work in such time as not to delay this defendant’s work. The defendant agreed that the apparatus should be in complete running order by April 8, 1940.
3. It is clear that the apparatus was not in running order by that time. Indeed, it appears not to have been completed until sometime in October, 1940. To what extent this delay was excused by the failure of the plaintiff to perform its part of the contract need not be considered for the contract provided that the defendant Otis Elevator Company “shall not be held responsible or liable for any loss, damage,, detention or delay caused by accidents, strikes,- lockouts, fire, explosion, theft, lightning, windstorm, earthquake, floods, storms, riot, civil commotion, malicious mischief, Act of God, or by any cause beyond its reasonable control, whether or not the same is herein specified, and in any event it shall
4. The plaintiff without objection introduced a copy of this contract at the hearing and it was before the judge in its entirety including the provision that the defendant Otis Elevator Company “in any event . . . shall not be liable for consequential damages” although this particular provision of the contract was not expressly pleaded. The rule of damages in an action for breach of contract is that the plaintiff “is entitled in general to damages sufficient in amount to compensate him for the loss actually sustained by him, and to put him in as good position financially as he would have been in if there had been no breach and he had completed the contract. He may not insist upon extraordinary or unforeseen elements of damage, but only such as flow according to common understanding as the natural and probable consequences of the breach and such as may be presumed to have been in the contemplation of the parties at the time the contract was made.” Bucholz v. Green Bros. Co. 272 Mass. 49, 54. See also Restatement: Contracts, § 330; Williston on Contracts (Rev. ed.) § 1356; Hadley v. Baxendale, 9 Exch. 341, 354-355. In no event is recovery permitted of damages not resulting from the breach of the contract, that is, not the consequences of such breach. On the other hand, it is apparent that the agreement that the defendant shall not be liable for consequential damages is not to be interpreted as meaning that the defendant shall not be liable for any damages whatsoever, and this conclusion is supported by the provision of the contract relieving the defendant from liability for damages resulting from various named causes. The natural interpretation of “consequential damages” as used in the contract is that it does not refer to damages that “flow according to common understanding as the natural and probable consequences of the breach,” that is, those arising naturally “according to the usual course of things, from such breach of contract itself,” Hadley v. Baxendale, 9 Exch. 341, 354, “usual” damages
5. We think that the provision against liability for “consequential” damages, naturally interpreted, provides against liability for damages that do not arise “according to the usual course of things, from such breach of contract itself,” that is, against liability for “special” damages that are the consequences of special circumstances known to the parties at the time the contract was made. See Washington & Old Dominion Railway v. Westinghouse Electric & Manuf. Co. 120 Va. 620.
6. Under the provision so construed, damages for the loss of rents of apartments in the apartment house in which the elevator was to be installed ■— the only damages shown — are not recoverable since such damages do not arise “according to the usual course of things, from such breach of contract itself” but can arise only as the consequence of circumstances known to the parties.
Third. Damages against the defendant W. S. Tyler Company for breach of its contract of May 4, 1940, hereinbefore referred to, to furnish and install the elevator entrances and
1. The contract between the plaintiff and the defendant W. S. Tyler Company was for the contract price of $1,475. Earlier in this opinion this contract has been described, and the findings of fact with respect to performance thereof have been set forth. This contract provided that the "factory will ship materials three and one half weeks after receipt of approved details and the erection of the entrances will require eight working days and elevator entrances must be completed and erected in place by June 10, 1940.”
2. The plaintiff is not entitled to recover damages from this defendant for delay in completing the installation of the elevator from June 10, 1940, to October 7, 1940, when it was actually installed. According to the findings of the judge, which are not plainly wrong, it could not have been installed until about October 7, 1940. This impossibility of installing the elevator until October 7, 1940, resulted from the fact that it could not be so installed until guide rails had been put in the elevator shaft by the Otis Elevator Company under its contract with the plaintiff. Such impossibility was not caused by the defendant W. S. Tyler Company, and this defendant was not liable in damages for the resulting delay. And the resulting delay did not preclude recovery by this defendant under the counterclaim for the contract price. Wallis v. Wenham, 204 Mass. 83, 89. Ravage v. Johnson, 316 Mass. 558, 562. See also Suburban Land Co. Inc. v. Brown, 237 Mass. 166. And, as the judge found, the delay by this defendant in delivering the materials for the elevator caused no delay in the completion thereof. The contract,. however, contained an express provision for delivery of the materials at a fixed time. Though they were then fabricated and ready for shipment, they were not then shipped. The questions, therefore, arise whether the plaintiff is entitled to damages for delay in such shipment and whether such delay precluded recovery by this defendant of the contract price. The plaintiff cannot recover damages in this suit for non- ■ delivery of the materials at a fixed time since, if for no other
Fourth. There was no error in the failure to grant a permanent injunction. The work on the apartment house was completed before the hearing on the merits, and the evidence as to other or prospective operations by the plaintiff, even if admitted and believed, did not show such facts as entitle the plaintiff to a permanent injunction for the protection of such building operations.
Fifth. No question of the exclusion or admission of evidence is argued by the plaintiff, the appellant here, and we treat such questions as waived. If the plaintiff has saved any exception to the reading by the trial judge of the decree of a justice of this court and his rulings and order for a decree incorporating the report of the judge of the Superior Court under G. L. (Ter. Ed.) c. 214, § 9A (6), inserted by St. 1935, c. 407, § 4, upon an application for a temporary injunction, including the facts found by the trial judge which are made a part of this report, the plaintiff has not argued it and we treat it as waived.
It follows that the final decree must be affirmed with a single bill of costs of this appeal against the plaintiff for the labor defendants; also with costs of this appeal against the plaintiff for the defendant Otis Elevator Company, and with costs of this appeal against the plaintiff for the defendant W. S. Tyler Company.
So ordered.
Mr. Justice Spalding concurs in the result.