Burke v. Dunbar

128 Mass. 499 | Mass. | 1880

Ames, J.

As the first instruction requested by the defendant was given, the verdict of the jury imports that the wall was built, of the dimensions specified in the contract, in a thorough and workmanlike manner, and to the acceptance of the defendant. The evidence reported plainly indicates that, after the work had begun, a difficulty about securing a proper foundation for the wall became manifest, which was not in the contemplation of either party when the contract was entered into. The plaintiff’s undertaking was to build the wall, of the dimensions specified in the written contract. No special stipulation was made in regard to the foundation, and it was apparently assumed by both parties that the natural foundation would be sufficient without the driving of piles or any special precaution or extraordinary support of any kind. The instructions given by the court as to the plaintiff’s duty under the circumstances as actually developed, appear to us to have been carefully guarded, well adapted to the state of the evidence, and all that could reasonably and fairly be asked for by the defendant. The jury were told that he had a right to build upon such lines as the defendant or his agents marked out, and that, if he built the Wall upon a foundation which he knew or had reason to believe was defective, without disclosing its condition to the defendant or his agents, and the walls proved defective from that cause, he was not entitled to recover.

We must infer from the verdict, under the instructions given, that he satisfied the jury that he disclosed to the defendant or his agents all his knowledge or grounds of belief of any defect in the foundation, and all that he discovered of defect as the work progressed, and built only on such foundations as the defendant furnished, or knew that the wall was being built upon, the defendant allowing him to proceed without objection. This was all that he was bound by the contract to do.

Exceptions overruled.