230 Mass. 73 | Mass. | 1918
The refusal of the defendant’s first request, asking •for a ruling that “The original contract was.conclusively settled by the making and acceptance of the final certificate and payment,” as well as the refusal to instruct the jury “that upon all the evidence the architect’s final certificate was in any way final and conclusive upon the parties, or that the plaintiff could not recover on the principal contract because of the issuance of the architect’s final certificate and payment thereunder,” shows no error of law.
The defendant relies upon the clause of the contract which provides that “no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials.” But the jury could find on conflicting evidence that the plaintiff never agreed to a substituted performance as to the waterproofing to which the architect testified. A further finding also would have
The present case, therefore, is plainly distinguishable from Hathaway v. Stone, 215 Mass. 212, and the plaintiff is not estopped from contending that, the building not having been completed in accordance with the specifications, he is entitled to 'damages notwithstanding the architect’s certificate of final payment with which he has complied. Handy v. Bliss, 204 Mass. 513. And the jury on the auditor’s report would be warranted in finding “that the work and material which had not been furnished and performed consisted of the furnishing of an inadequate heating apparatus . . . omissions to waterproof the cellar, . . . and a shortage in the height of the sheathing.” It was not contended by the defendant that the basement had been made waterproof as called for by the contract, and, whether the plaintiff as the architect testified agreed to a substituted performance, was as we have said for the jury.
The third request, for a ruling that, under the declaration as framed the plaintiff could not recover “on the so called guarantee” was inappropriate. While the contract contained a clause that the contractor at his own expense is to make good “any defects or faults in his work, occurring from poor workmanship or materials, which may appear within twelve months after completion of the building,” neither the substituted nor amended declaration contains a count on the guaranty, and on the record the parties and the judge must have understood that the plaintiff made no claim under, it;
It is stated in the bill of exceptions that the court “charged the jury correctly and fully as to the law on all branches of the case,” unless the first request and the second request should have been given. The plaintiff under the second count having asked for damages to “his dry goods and other merchandise” caused by the defendant’s
So ordered.