211 Mass. 311 | Mass. | 1912
The question whether the defendant was required to make the third floor water-tight, depending entirely upon the construction of the language of the contract and specifications, was one of law for the court and ought not to have been left to the jury. Globe Works v. Wright, 106 Mass. 207, 216. Goldstein v. D’Arcy, 201 Mass. 312, 317. No doubt, if.the jury had answered the question correctly, this would have been harmless error.
The stipulation that the floor was “to be guaranteed and kept in repair for two years” does not import an agreement to keep it water-tight. This could not mean more than a guaranty that the work and materials which the defendant was to supply should remain in good order and condition for the specified time. Certainly it could not imply an agreement that the floor should continue to possess a quality which there was no agreement that it should have.
So far as the ordering of a verdict rested upon this ground, it cannot be sustained. On the contrary the judge should have ruled as requested by the defendant that it was not required that the floor should be water-tight.
But the defendant had agreed to execute all its work “in the best and most substantial manner and to the satisfaction of the architect.” The jury have found that the defendant’s conduct in driving nails through the asphalt was a negligent and improper way of complying with the specifications. We assume that this finding was made upon competent evidence and under proper instructions. If so, it settled the question that the defendant, in this respect at least, had failed to carry out its agreement. Unless there was some other issue that also must be passed upon, it would follow that the verdict for the plaintiff rightly was ordered, and . only the amount of damages would remain open.
But there was another issue in the case. There was evidence that the architect had put in as clerk of the works one Willard, whose duty, according to the testimony of the architect, it was,
Under these circumstances and in view of the fact that no specific manner of driving the nails was provided for in the specifications, the jury might have found that the doing of this work in the way in which it was done had been approved by the architect, that on his approval the work had been accepted by the plaintiff, and that any objection on this ground had been waived and was not open to the plaintiff. The instructions given by the judge upon this issue were very meagre, but we need not consider whether they were open to exception. However this may be, the findings of the jury do not cover the issue thus presented, nor does it appear to have been passed upon at all.
It follows that the findings made did not cover the whole case. They were not sufficient to warrant the ordering of a verdict for the plaintiff. Couilliard v. Eaton, 139 Mass. 105. Under the terms of the report, judgment must be entered for the defendant.
So ordered.
This witness, who was called by the defendant, was the superintendent of a company that had charge of laying the asphalt floor.