Donahue v. Partridge

160 Mass. 336 | Mass. | 1894

Knowlton, J.

By the terms of the contract under which this suit is brought, the balance due the plaintiffs became payable “ in thirty-three days after the full completion of the contract.” Inasmuch as it was not paid when due, the plaintiffs are entitled to interest, by way of damages for failure to pay, from the time when it should have been paid. Foote v. Blanchard, 6 Allen, 221. Davis v. Harrington, ante, 278.

The difference between the ruling requested and the ruling given on this point is, that the defendants’ request was founded on the theory that the pendency of suits against the defendants, and also against the plaintiffs, for damages caused by the work done and the manner of doing it, extended the time for payment under the contract, and saved the defendants from a liability to pay interest. But we are of opinion that the agreement of the plaintiffs “to assume all responsibility for damage to persons, property, or estates occasioned by reason of his work ” was an independent undertaking, which was not intended to postpone payment for the work until the settlement of all controversies between the contractor and others in regard to whether any damage had been done, or in regard to the amount of the damage if there was any. The stipulation for payment was in another part of the contract, and it fixed the time by reference to the completion of the contract. The word “ completion ” has reference to that which it was in the power of the plaintiffs to do in the performance of the work. The agreement to assume responsibility for damage had reference to possible claims, well founded or without foundation, which might be made by others. It was an undertaking to assume responsibility for all such claims as could be maintained against the defendants or the contractor growing out of his manner of doing his work. It was the intention of the parties that the plaintiffs should be paid upon the completion of their work under the contract, without waiting for the end of possible litigation on this subject. To what protection or security the defendants would have been entitled if they had needed any to save them from loss for a failure of the plaintiffs to perform this agreement, we have no occasion to inquire.

The only other exception is founded upon a request of the defendants for a ruling at the hearing on their motion for a new trial. This request assumes that there was an answer of the jury to a question put them by the presiding justice at the defendants’ request when they returned their verdict. We need not determine whether the defendants would have been entitled to a deduction from the verdict, or to a new trial, if there had been such an answer on record as they assumed there was. It appears that the question was not one which the jury had been instructed to answer, and when it was put at the defendants’ request after they had returned into court with their verdict, the foreman hesitated. Another juror thereupon made answer, giving the date when he said they found the work substantially completed, and the date from which they reckoned interest. “ Another of the jurors then addressing the court said that their ' verdict was the result of a compromise.’ ” Nothing else was said by any of the jurors. No answer fo the question was entered of record in connection with the verdict, and we think the presiding justice was right, under the circumstances, in not finding any such answer made by the jury as could properly be entered of record to explain their verdict. The foreman, whose duty it was to speak for the jury, was not prepared to make any answer, and two other jurors, each speaking without authority from the others, gave different accounts of how the verdict was arrived at; the other jurors remained silent. We think there was nothing to warrant the judge in attempting to correct their verdict, or to justify him in setting it aside. Exceptions overruled.