199 Mass. 220 | Mass. | 1908
1. We are of opinion that the auditor was right in proceeding on the footing that the Hunt Company was entitled to recover if “ the towers did conform to the contract and specifications, as modified by the parties in March, 1903, and that if they were not satisfactory to the vice-president of the railway company they ought to have satisfied a reasonable man.”
This is not a contract “ into which considerations of taste or personal preference may enter,” as was said by Knowlton, C. J., in Noyes v. Eastern Accident Association, 190 Mass. 171, 172. That is to say, it is not a case within McCarren v. McNulty, 7 Gray, 139; Brown v. Foster, 113 Mass. 136; White v. Randall, 153 Mass. 394; Webber v. Cambridgeport Savings Bank, 186 Mass. 314, 315. The case at bar is for work of a business character and comes within Hawkins v. Graham, 149 Mass. 284, if as matter of construction it was to be done to the satisfaction of the defendant and not to that of a third person as arbitrator.
The provision of the contract is: “ The contractor agrees that all material furnished and work done hereunder shall be subject to acceptance by the railway company and its vice president; that all apparatus furnished and work done shall be subject at all times to the inspection of said vice president or his authorized agents, and that any work performed or material furnished which may be deemed by said vice president to be not in accordance with the terms of this contract and accompanying specifications shall be immediately replaced by the contractor at its own expense.” There are also these provisions in the specifications : “ The work shall be executed under the direction and supervision of the vice-president of the Boston Elevated Railway Company or his authorized representative. . . . The vice-president of the Boston Elevated Railway Company, without relieving the contractor from any responsibility therein, reserves the right to direct the manner and order in which the work shall be executed.”
Had Mr. Sergeant been a third person and not an officer of the defendant corporation, the provisions of the specifications would have been enough to make him a quasi arbitrator within the rule applied in Atkins v. Barnstable, 97 Mass. 428; Palmer v. Clark, 106 Mass. 373; Flint v. Gibson, 106 Mass. 391;
But Mr. Sergeant represented the railway company in this transaction, and was not a third person. That being so, the provision that the work was to be done “ subject to acceptance by the railway company and its vice president ” would have brought this case within Hawkins v. Graham without a doubt had that been the only provision of the contract on this point. In such a case Mr. Sergeant in accepting or not accepting the work would have acted for and represented the railway company, and would not have been a third person acting as arbitrator.
Although, as we have said, the provisions in the specifications look the other way, we are of opinion on the whole that Mr. Sergeant must he taken to have been the representative of the defendant and not a third person in this matter. This conclusion is enforced by the fact that all the correspondence set forth in the report which took place under the contract was carried on by Mr. Sergeant in behalf of the railway company.
2. The railway company urges that the auditor is wrong in his conclusion from the correspondence set out in the report “that if the changes specified were made, and if they accomplished the results which they might fairly be expected. to accomplish, the railway company would be satisfied with the towers and would accept them.”
This contention of the railway company is based on these words in the closing letter of April 3: “We have no desire whatever to interrupt the work, but we waive none of our rights under the contract to reject any or all of it if it proves unsatisfactory when completed.” This statement is to be taken in connection with what went before.
On February 19,1903, (that is to say, six months after the first tower and five and a half months after the second tower should have been completed and in working order,) Mr. Sergeant wrote to the Hunt Company a letter stating that “ up to this time there is no indication that these towers are likely to prove in any degree adequate or satisfactory,” complaining that the Hunt Company’s men had left the work, and ending with this threat: “ Unless you proceed without further delay to com
3. We find no error with the way in which the auditor dealt with the provision of the contract that “the towers may be operated by two men or one man as may be preferred,” and the contention of the railway company “that the boom does not swing in a horizontal plane sufficiently to make its swinging of any practical value.” The first of these two matters is disposed of by the auditor in these words: “ If this was a difficulty, I find that it was one which was apparent in March, 1903.” And the second was as follows: “ If this was a defect, I find that it too was apparent in March, 1903. And I find that so far as these two objections to the towers are concerned, they were waived by the railway company by virtue of the conferences and correspondence above referred to — not expressly, but by necessary implication.”
4. During the hearings before the auditor a crack appeared in the upper part of the left hand frame of each engine. The counsel for the railway company assumed in his argument that these cracks appeared there for the first time, not that they existed before but were discovered then, as the auditor in one part of his report seems to imply. We shall treat the fact on the footing assumed by the railway company’s counsel. The auditor found that these cracks came not from a faulty design, but from some fault in the casting, and that they “ constitute a serious defect.” The railway company contends “ that this justified the rejection of the towers and [that] the contract has never been fulfilled.” Under this finding the frames of the en-'
On the other hand we are of opinion that the auditor was wrong in the way he dealt with the railway company’s claim for damages by reason of these cracks. He disposed of the matter in these words: “These two parts of the apparatus proved defective within two years after the date of completion, and by the terms of section 6 of the specifications the Hunt Company is bound to furnish new side-frames free from flaws and of suitable strength. On my findings, therefore, these cracks pass out of the case as an element of damage.”
Had the first clause of Section 6 of the specifications which we have just set forth stood alone, the damages for a breach of it caused by a defect in the casting, would have included not only furnishing new frames but also the expense of taking off the old frames and putting on new ones, together with the loss caused by the towers being out of commission while these repairs were being made. And the same damages would have been due under Section 3 of the contract. The auditor's ruling is in effect a ruling that these two provisions (to wit, clause 1
The result of the two clauses is that in case of a defect in the material of any part of the apparatus (discovered within two years) the railway company had a right to elect to claim damages or to call for a new part.
The case must be recommitted to the auditor for further hearing on the amount of these damages.
5. We find no error in the finding of the auditor as to the allowance of extras
6. Lastly, we are of opinion that there was a mistrial in the matter of damages suffered by the railway company from delay in the completion of the towers.
By the terms of the contract the two towers should have been “ completed and in working order ” one on or before August 15, 1902, and the other on or before September 1, 1902. By the finding of the auditor they were completed on May 25, 1903, and July 21, 1903, respectively. That is to say, there was a delay of nine months and ten days in case of the first, and a delay of ten months and twenty-one days in case of the second tower. Of these two periods of delay the auditor found that seven months in each case was the “ inexcusable delay ” of the Hunt Company.
For this delay the . auditor finds that the railway company is not entitled to recoupment in the action brought against it for the contract price, nor to any recovery in the cross action.
It appeared on the evidence that during some portion of the whole period of delay, namely, from August 15, 1902, to July 21, 1903, there was a coal famine in Boston owing to a strike at the coal mines. What portion of that period was covered by the coal famine and strike is not found by the auditor.
The railway company introduced evidence that under ordinary circumstances the value of each tower was $25 a day, or at least six cents a ton, and that during the period of delay it paid out money in demurrage, dockage and similar expenses.
The claim for damages under ordinary circumstances, that is to say, before the effect of the strike was felt in Boston and after it ceased, is dealt with by the auditor in these terms: “ So far as the damages which might be allowed [in recoupment] in the first case are concerned, it was contended that the fair rental value of the property to the defendant might be allowed, and the only evidence as to what this might be was the evidence of one expert produced by the railway company who said that the value of such towers was $25 a day for each tower. This would
The claim for damages during the period affected by the strike is dealt with as follows: “ So far as all the damages are concerned which the railway company undertook to prove under the first four counts of its declaration in the second case, I find that they were all attributable to the coal strike, which came without warning, like a flood or tornado. ... A number of vessels were in the harbor simultaneously so that even those which were small enough to go into the Lincoln Wharf dock could not all have been discharged there. It is, of course, true that if the towers had been running then as they are running to-day considerable quantities of coal could have been discharged into the Lincoln Wharf pocket and distributed from that point, and this method of discharging the vessels would have saved the railway company a considerable amount of money. But the damages which it suffered I find and rule were attributable to the coal strike, and not to the failure of the Hunt Company to perform its contract, and I rule that the railway company is not entitled to recover any damages in the second case.”
The conclusion reached by the auditor on both claims was as we have before said that “ the railway company is not entitled to recover any damages whatever.”
We are of opinion that the auditor was wrong in the way he dealt with both periods.
Upon this branch of the case the main ground on which the auditor went (as we understand his report) is that no damages were due because coal towers “ are not commonly rented in this port.”
A man who has been deprived of his property is not precluded from recovering therefor because the property in question is not “ commonly rented.” That point is covered by Weston v. Boston & Maine Railroad, 190 Mass. 298.
The case of Weston v. Boston & Maine Railroad is different from the case at bar in this: In Weston v. Boston & Maine Railroad the goods to be transported were so essential to the business of the plaintiff that without them the business came to an end and the loss was measured by the profits ordinarily made. The two towers on Lincoln Wharf were not so essential to the business of the railway company that its business was stopped by the Hunt Company’s failure to furnish them as they had contracted to do. The direct damage suffered by the railway company in the case at bar was the loss of economical operation which would have been furnished by the use of these towers. See in this connection, for example, Abbott v. Hapgood, 150 Mass. 248.
Direct evidence on that point was introduced by the railway company. One part of this evidence is dealt with by the auditor in these words: “ The only evidence as to what this might be was the evidence of one expert produced by the railway company who said that the value of such towers was $25 a day for each tower. This would amount to about $15,000 a year, and it is obviously absurd.”
The auditor was not bound to accept the testimony of the expert because it was the “ only evidence.” See Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314, and cases there cited.
On the other hand if the auditor knew enough about the subject in question to reject the evidence of this expert as putting the value too high, it is hard to see why he did not cut it down to the proper amount. And it is certainly a non sequitur to come to the conclusion that no damages were due.
But even if the auditor was right in his conclusion that on the evidence before him the value of the use of these two towers when ordinary conditions prevailed could not be measured in money, he was wrong in his conclusion that no damages were due here.
It was held in The Greta Holme, [1897] A. C. 596, and in The Mediana, [1900] A. C. 113, that when a person is deprived of property he is entitled to substantial damages, even although the property in question did not yield an income to the owner.
In The Greta Holme a dredger owned by the Mersey Docks and Harbour Board was injured by collision with the Greta Holme, for which the latter was alone to blame, and was laid off for fifteen weeks for repairs. The Mersey Docks and Harbour Board was a public body charged with the duty (inter alla) .of keeping the harbor of Liverpool from filling up with silt. Its funds are derived from rates levied upon those using the undertaking. It was held that this board was entitled to substantial damages for loss of the use of the dredger during these
Both these cases are cases of tort, and would not necessarily determine the question before us if the only claim to damages which the railway company have here was for loss in economical operation from not having a machine when by the terms of a contract it was entitled to it. For the moment we are assuming that no such loss was proved in the case at bar. But it is apparent that that was not the only loss which the railway company suffered here. So long as these towers were in process of construction after the time for their completion had expired, it would seem that the railway company must have lost (1) all return on the money previously paid by it in part payment for the towers, (2) all use of Lincoln Wharf as a wharf, (3) all use of Lincoln Wharf dock as a dock, and (4) all use of its investment in the coal pocket and other structures erected by the railway company in connection with the towers. So long as the Hunt Company was at work on the towers after the time for completion of them had passed, the railway company was thereby deprived of all return from its investment in these four items of property, and to that extent the decisions, in the Greta Holme and the Mediana are applicable.
There is one other matter that should be noticed in this con
At the new trial there may be more evidence bearing directly on the value of the use of the towers, and on all these matters, and it would serve no useful purpose to discuss them further now.
It is proper to add that we have found nothing in the thirty cases cited en masse on this part of the case by the Hunt Company,
This brings us to the period when the conditions in Boston Harbor were affected by the coal strike and demurrage and dock-age had to be and were paid by the railway company.
In the first place, if the auditor had been right in ruling that there could be no circumstances under which the railway com-
But we are of opinion that the auditor was wrong in ruling that under no circumstances could sums paid for demurrage and dockage be recovered.
During the time the strike lasted, including the time when conditions in Boston Harbor were affected by it (or at any rate during a part of this time) the Hunt Company was in default in not furnishing the railroad company with the two towers called for by the contract for unloading coal at the railway company’s wharf known as Lincoln Wharf.
Under these circumstances the railway company had a right to procure in any reasonable and proper way, at the expense of the Hunt Company, what the Hunt Company had agreed to furnish and had not furnished to it, and all sums so expended could be recovered as the damage suffered by it.
Ho rule of damages is better settled. It was applied in Johnson v. Arnold, 2 Cush. 46; Waite v. Gilbert, 10 Cush. 177; Brown v. Smith, 12 Cush. 366; Mather v. American Express Co. 138 Mass. 55; Whitehead & Atherton Machine Co. v. Ryder, 139 Mass. 366; Peak v. Frost, 162 Mass. 298; Swift River Co. v. Fitchburg Railroad, 169 Mass. 326; Weston v. Boston & Maine Railroad, 190 Mass. 298, 299, 300; Metropolitan Coal Co. v. Boutell Transportation & Towing Co. 196 Mass. 72. And in other jurisdictions see Hamlin v. Great Northern Railway, 1 H. & H. 408; Blackburn, J., in Hinde v. Liddell, L. R. 10 Q. B. 265, 268; Featherston v. Wilkinson, L. R. 8 Ex. 122.
It goes without saying that the two towers here in question, in connection with the Lincoln Wharf power plant and coal pocket of the railway company on that wharf had no duplicate, and for that reason the exact facilities called for by the contract could not have been obtained by the railway company. For example, two towers could not be obtained which would discharge coal directly into the Lincoln Wharf power plant for use in that
But when the exact thing called for by the contract cannot be obtained by the party to whom performance is due, that party can procure at the expense of the one in default what under all the circumstances reasonably amounts to the next best thing. For example, if a railroad fails to carry a passenger to his destination he can under ordinary circumstances take a carriage at the railroad’s expense. Hamlin v. Great Northern Railway, 1 H. & N. 408. Hinde v. Liddell, L. R. 10 Q. B. 268. This was conceded by the parties in Sears v. Eastern Railroad, 14 Allen, 433. In the recent case of Metropolitan Coal Co. v. Boutell Transportation & Towing Co. 196 Mass. 72, the defendant had contracted to provide the plaintiff with a tug and barges for the transportation of coal, and it failed to do so. The plaintiff not being able to hire another tug with the accompanying barges, brought its coal in sailing vessels. The difference between the cost of bringing the coal in sailing vessels and the price to be paid for the tug and barges was held to be a proper measure of damages.
It being impossible to procure exactly what the contract here in question called for, the railway company had the right to get (at the Hunt Company’s expense) as nearly as it could what it would have had if the towers had been in working order. It could have hired another wharf, unloaded its coal vessels there, carried to Lincoln Wharf the coal to be used at that power station, and distributed from this hired wharf what would have been unloaded at the Lincoln Wharf coal pocket for distribution. Having done so, it could have recovered from the Hunt Company (1) the difference between the expense of unloading the coal for the Lincoln Wharf plant directly into that building and unloading it at the hired wharf, carting it from there to Lincoln Wharf and putting it in the storage room of that station; and (2) the difference in expense, if any, between unloading at the hired wharf and distributing it from that point, the coal to be distributed among other stations, and, the expense of doing the same work at Lincoln Wharf using the two towers in question, plus the loss from the Lincoln Wharf plant lying idle. And if
Further, if demurrage had to be paid for vessels which could have been discharged at Lincoln Wharf while they were waiting to discharge at wharves hired by the defendant or at other wharves owned by the railway company, that might well be an expense reasonably incurred in procuring as nearly as possible what it (the railway company) would have had, if the contract had been fulfilled.
The railway company could not procure a vessel of coal by ringing a bell or turning on a faucet. During and after a coal strike, coal has to be bought when and where it can be obtained, ships have to be secured when they can be chartered, and finally, the rule of a port is first come first served, and the result is that ships have to take their turn and wait for an opportunity to discharge. Under such circumstances the payment of demurrage may well be an expense reasonably incurred in discharging at another wharf in place of discharging at the wharf which was rendered useless by the coal towers not being in working order through the “inexcusable delay” of the contractor.
What we have said is not to be taken as exhausting the matter under consideration, but as showing some of the circumstances under which demurrage, dockage and similar expenses might be allowed as money expended in securing what the railway company was entitled to have during the seven months here in question of “ inexcusable delay ” on the part of the Hunt Company.
We assume that the ruling of the auditor here in question was made on the authority of such cases as Denny v. New York Central Railroad, 13 Gray, 481, Hoadley v. Northern Transportation Co. 115 Mass. 304, and perhaps The Henry Buck, 39 Fed. Rep. 211, cited by the defendant; but in those cases there was no question of expending money to secure what was due under the contract. The fact that demurrage had to be paid to get coal landed during that portion of the seven months during which there was a strike or while the effects of the strike lasted, in the case at bar, was because there were vessels waiting to be dis
The result is that the case must be recommitted to the auditor (1) to correct the allowance of interest before the date of the writ on the sums due for extras, (2) for further hearing on the damages suffered by the railway company from the cracks in the frames of the engines, and (3) for further hearing on the damages suffered by the railway company from the Hunt Company’s inexcusable delay of seven months.
So ordered.
“Section 6. The contractor guarantees that the apparatus furnished by him shall be ample and suitable in design and construction to perform the work as hereinafter specified, and that it shall be free from all defects in workmanship or material.
“ He also agrees to furnish free of charge to the railway company any part proving defective in the apparatus or any part thereof within two years after date of complete installation in working order of said apparatus.”
“Sections. The contractor agrees that all material furnished and work done hereunder shall be subject to acceptance by the railway company and its vice president; that all apparatus furnished and work done shall be subject at all times to the inspection of said vice president or his authorized agents, and that any work performed or material furnished which may be deemed by said vice president to be not in accordance with the terms of this contract and accompanying specifications shall be immediately replaced by the contractor at its own expense.”
“ The extras for which I rule that the Hunt Company is entitled to recover are such as were supplied to take the place of parts of the machinery broken through the negligence or inexperience of the railway company’s employees, or to take the place of parts of the apparatus which were worn out in the operation of the towers by the railway company. Many of these things were furnished before the towers were completed or ready to turn over, but they cannot be regarded as alterations or additions of materials or labor within the meaning of specifications, sec. 36, which the vice-president might order, and which, if ordered, were to be ordered by him in writing. They were outside the contract altogether. The railway company undertook to operate the towers before they were completed, for its own advantage as well as for the advantage of the Hunt Company, and extras of the kind I describe should be paid for just as much as if the towers had been turned over completed at the time when the railway company’s engineers began to operate them. Parts of the apparatus ordered by the railway company after the towers were completed, to supply the places of broken or worn out parts, or apparatus ordered by it which was outside of the contract, must, of course, be allowed for.”
The cases in the brief of the C. W. Hunt Company referred to above were as follows: Denney v. New York Central Railroad, 13 Gray, 481. Hoadley v. Northern Transportation Co. 115 Mass. 304. Fox v. Boston & Maine Railroad, 148 Mass. 220. Swift River Co. v. Fitchburg Railroad, 169 Mass. 326. Waite v. Gilbert, 10 Cush. 177. Wagner v. Corkhill, 40 Barb. 175. Allis v. McLean, 48 Mich. 428. Central Trust Co. v. Arctic Ice Co. 77 Md. 202. The Henry Buck Co. 39 Fed. Rep. 211. De Ford v. Maryland Steel Co. 113 Fed. Rep. 72. Bridges v. Stickney, 38 Maine, 361. Fox v. Harding, 7 Cush. 516. Hadley v. Baxendale, 9 Exch. 341. British Columbia Saw Mill Co. v. Nettleship, L. R. 3 C. P. 499. Merrimack v. Quintard, 107 Mass. 127. Harvey v. Connecticut Co. 124 Mass. 421. Clark v. Moore, 3 Mich. 55. Willey v. Fredericks, 10 Gray, 357. Taylor v. McGuire, 12 Mo. 313. Mather v. American Express Co. 138 Mass. 55. Johnston v. Faxon, 172 Mass. 466. Edgar v. Breck & Sons, 172 Mass. 581. Manning v. Fitch, 138 Mass. 273. Florence Machine Co. v. Daggett, 135 Mass. 582. Spiers v. Union Drop Forge Co. 180 Mass. 87. Abbott v. Hapgood, 150 Mass. 248. Lonergan v. Waldo, 179 Mass. 135. Watson v. Needham, 161 Mass. 404. White v. Moseley, 8 Pick. 356. Whitehead & Atherton Machine Co. v. Ryder, 139 Mass. 366.