128 Mass. 110 | Mass. | 1880
When this case was before this court at a previous term, a new trial was ordered, because there was found to be a question of fact, material to the rights of the parties, which had not been passed upon. 126 Mass. 110. That question was, whether the imperfection in the construction of the tower of the church, on account of which the society refused to accept the church edifice as a full performance of the contract for its construction, was attributable to the fault of the contractor, or to a defect in the original plan, for which the contractor was not responsible. It has now been settled by a verdict in favor of the defendants, under instructions from which it is clear the jury must have found that the imperfect construction complained of was caused by improper workmanship, or improper materials furnished by the contractor.
A question is now raised as to the true interpretation of the defendants’ contracts of acceptance, upon which this action is brought. These acceptances are indorsed upon two orders drawn by O’Flaherty in favor of the plaintiff in July and Sep
The more reasonable construction of the contracts in question is that the defendants’ promises to pay were conditioned upon an express acceptance of the work under the contract, or upon an acceptance implied from the possession and occupation of a building, for the failure to complete which according to contract the defendants were not at fault. The interpretation contended for by the plaintiff is inconsistent with the terms of the orders themselves, which are both made payable out of the percentage retained by the society, which we understand to be that portion of the contract price usually retained for the last payment, as a guaranty for the full performance of the contract.
Exceptions overruled.