Charles R. Gow Co. v. Marden

262 Mass. 545 | Mass. | 1928

Carroll, J.

This is an action to recover for extra work and material. The parties made a written contract by which the plaintiff was to install a number of caissons to carry the foundations of a building. The work was to start from the grade of the basement floor, and if it became necessary to increase the bell sizes or otherwise increase the caisson dimensions as shown in the schedule, the defendants were to pay for the increased volume at a rate proportionate to the price named in “Item 1.” The case was heard on the report of the auditor. The judge found for the plaintiff, and the case is here on the defendants’ exceptions.

The first exception argued is to the refusal to recommit the auditor’s report, the defendants contending that certain time cards were erroneously admitted in evidence before the auditor. These time cards were kept by the plaintiff’s timekeeper and clerk. It was a part of his work to keep an accurate account of the work done by the plaintiff’s employees.. The cards contained the clerk’s entries of the names of the men on the job, the time spent by them, and their compensation. The cards were kept in the usual course of business and as a part of the time clerk’s regular work, and were made from personal knowledge, the entries being made on the day the work was done. The records on the back of the cards contained measurements made by the foreman and given to the timekeeper, who, with the foreman, examined those items and measurements. The timekeeper was a witness at the hearing before the auditor and the findings of the auditor as to the details of the time cards, as we construe his report, were based on the testimony of the timekeeper.

The cards were admissible at common law. The entries were in the usual course of business. The timekeeper himself saw the men at work, and the measurements made by the foreman were made in the presence of the timekeeper. Donovan v. Boston & Maine Railroad, 158 Mass. 450. See Delaney v. Framingham Gas, Fuel & Power Co. 202 Mass. 359, 366-368.

The defendants contend they were under no obligation to remove materials excavated by the plaintiff from the caisson locations. The work covered by the contract was to be done on a long narrow lot. Pumps and derricks occupying considerable space were required. Stone taken from the defendants’ wall had to be removed, dirt excavated by them had to be taken away. The stone and dirt handled by the defendants were left in such a position that the plaintiff could not go on with its work until this material had been removed. The plaintiff’s foreman requested the defendants to move some of the stone. They replied they had “no labor for that purpose” and for him to “go ahead and have it done.” It was impossible, the auditor found, to determine what portion of time was spent on the rehandling of that proportion of the material which came from inside the cylinders. Under the written contract the plaintiff was to furnish tools, material and labor and “leave our excavated material on the site as dumped.” The trial judge ruled that if the plaintiff dumped the material removed by it from the caisson excavations in a negligent manner and in a wholly improper place so as to interfere with its own work, it could not charge the defendants with the cost of rehandling this excavated material; and in denying the fourth request of the defendants the judge ruled that the provision of the contract giving the plaintiff the right to leave the excavated material on the site as dumped gave the plaintiff the right to dump the material as it came out of the excavation, and that it was the duty of the defendants to remove this, excavated material. The auditor found that it was impossible to determine whether the plaintiff’s work could have been carried on in a more efficient way.

In our opinion the rulings of the judge were accurate. The plaintiff was not required to remove the excavated material. It was to be left on the site as dumped, and the defendants were to do all necessary excavation to the grade “from which . . . [the plaintiff’s] work . . . [was] to start; drill and split all stonework encountered at the caisson locations, removing all such stone as . . . [could] reasonably be reached before our cylinders are set.” Considering the size of the lot, the quantity of appliances necessary to do the work, the difficulty of accomplishing it unless the excavated material were taken away, and the fact that the plaintiff was under no obligation to remove it and was to leave it on the site as dumped, it was the defendants’ duty as we construe the contract to do the preliminary work so the plaintiff could proceed with the setting of the cylinders, and as this, it could be found, involved the removal of the excavated material by the defendants, the plaintiff could recover for its labor in removing this material.

Under the fifth paragraph of the contract, if it became necessary to increase the bell sizes or otherwise “increase the caisson dimensions,” the defendants were to pay the plaintiff for the increased volume at a rate proportionate to the price named in “Item 1.” In some instances the size of the base was increased and this necessitated extra excavation and additional cement. The defendants contend that the caisson is merely a concrete pile resting on a concrete base; that the words “increase . . . dimensions,” as used in the contract, mean the increased dimension of the concrete pile or base, and do not mean the amount of labor necessary to create the displacement or the work of excavating and back filling; The installation of the caissons could not be made unless the soil was excavated, and on conflicting evidence the auditor found that the words “caisson dimensions” included the necessary work incident to the installation of the caissons. We do not agree with the defendants’ contention. By paragraph two of the contract, the plaintiffs were “to start our work from the grade of the existing basement floor, excavate the caissons to the sand and/or gravel shown by our borings.” These words are not limited to the concrete structure; they include the installation, and the removal of material was a part of this work. It would be too narrow a construction and contrary to the intention of the parties, to limit these words to the amount of concrete, with no allowance for the preliminary work. By paragraph five the “increased volume” was to be paid for “at a rate proportionate to the price named in Item 1.” That price included excavation as well as cement, and by reference to “Item 1,” the excavation as well as the concrete was to be taken into account.

Exceptions overruled.