120 Mass. 459 | Mass. | 1876
The subject matter of the contract was certain houses which had been begun and were in part finished. So far as appearances went the finishing that remained to be carried out was “the inside painting, papering, bell-hanging and the like.” We must assume that the plaintiffs made such examination of the buildings as they saw fit; that they must have seen what kind of houses they were intended to be, must have understood what parts of them appeared to be finished, and were content to lend their money upon a mortgage upon them, provided security should be given that they should be finished as they had been begun. The contract of the defendant was merely that they should be so finished, to the acceptance of the bank. The builder thereupon proceeded to finish the houses, in all the items and particulars in which they were apparently and confessedly unfinished, so that they were then, and for about two months continued to be, to all appearance, in the condition required by the defendant’s contract. That is to say, the original design and plan of construction had been carried out, and the houses were finished as they had been begun. There can be no doubt that, at the date of the contract, both parties supposed that this was all that was required.
The construction which the plaintiffs put upon this contract is that it requires of the defendant not only to supply this “ inside painting, papering, bell-hanging and the like,” but also to guarantee the sufficiency and good quality of the materials and workmanship in all that had been done upon the houses before he incurred any responsibility in the matter. We think his contract will bear no such construction. It does not appear that his attention was called to the security of the foundation, or that he had any means of knowledge in relation to it, that the plaintiffs did not also have. Whatever might have been his liability if the houses had been destroyed by fire or tempest before they were completed, his responsibility terminated when they were completed by his supplying the unfinished items. The argument of the plaintiffs would require him not merely to finish the
It is true that his guaranty was that the finishing should be to the acceptance of the bank. But it is obvious that this stipulation cannot enlarge the list of the things that he was to do, or make him responsible for deficiencies in workmanship or material, in matters not included in his contract. The whole difficulty in the case, and the whole of the plaintiffs’ claim, arises from the insufficiency of the foundation, and for that we think he was not responsible. Judgment for the defendant.
In the case of the Barnstable Savings Bank, as we understand the agreed facts, the result as to the first and second counts must be the same as in the case just considered. But in the house built by Albert C. Pond, the inside finishing, to which the defendant’s liability was limited by our decision in the case of the Hyannis Savings Bank, has not been supplied. The defendant’s contract as to that house is not a mere guaranty that Pond shall finish it, but is an absolute promise that it shall at all events be finished without unnecessary delay. If therefore the plaintiff bank has been put to the expense of supplying the deficiency and finishing what remained unfinished upon that house, according to the rule laid down in the case of the Hyannis Bank, it would be entitled to recover the amount reasonably and in good faith so expended, with interest. Having lent the money upon a mortgage security, and not upon the mere personal credit of the borrower, the plaintiffs, as trustees and managers of the funds of their depositors, were bound to see that the security should be made and kept good. The expense incurred in so doing might not be recoverable of the borrower, so that his continued solvency would furnish no reason why this defendant should be relieved of his liability. According to the terms of the reservation, therefore, the case is to go to an assessor for the Assessment of damages to that extent only.