209 Mass. 445 | Mass. | 1911
This was an action upon a written contract by which the plaintiff, the party of the second part, agreed with
Among the provisions of the contract were the following: “ In case any particular shall be deficient, or not clearly expressed in said specifications and drawings, the said party of the second part will apply to the said first party for additional drawings and explanations, and will carry out the general design, as directed by' the said first party, in a thorough manner as part of the contract. ... It shall be lawful for said party of the first part at all times to direct, in writing, any additions to or deviations from the drawings and specifications aforesaid, without in any other respect or particular varying this agreement or impairing the force thereof; and in case of any such addition or deviation so directed in writing, such further time shall be allowed for the completion of said work as the architect shall decide to be reasonable, and such sums of money shall be added to or subtracted from the amount of the consideration hereinafter agreed to be paid, as the increase or diminution in the amount of work and materials thereby occasioned shall be fairly worth. And it is expressly agreed that no alterations or additions are to be paid for unless so directed in writing.” And near the end of the contract is the general provision that “ the general contractor [the Nor cross Brothers Company] will pay for no extra work or material unless ordered in writing.”
The purpose of the provision that the defendant shall not be held to pay anything either for changes, additions or other extra
The plaintiff made twenty-eight requests for findings of fact. As to these the trial judge says in his memorandum that “ so far as the plaintiff’s requests for findings of fact are consistent with the findings of the auditor in his report I give them. So far as they are inconsistent therewith I deny them.” In other words the judge, giving due weight to the report of the auditor and to the other evidence, came to the conclusion that the auditor was right in his findings and adopted them. It cannot be said that in this there was any error in law. The evidence being conflicting, his decision could not be said to be wrong in law. Nor do we understand that the plaintiff has taken any exceptions to this action of the judge.
The plaintiff submitted seventeen rulings, some of which were given and some refused, the latter being those numbered one, five, eight, ten, and twelve to seventeen, both inclusive.
Hardy, J.
The plaintiff’s offer was as follows:
(a) “ I offer to show that this clause providing that no additions or alterations shall be paid for unless ordered in writing is common in contracts of this character between general contractors and sub-contractors, not only in case of the defendant’s contracts but those of other general contractors; that during the progress of the work, when an addition or alteration is decided upon, it is the general custom, which was known to both plaintiff and the defendant, irrespective of this clause, for the general contractor to direct the sub-contractor to proceed without waiting for a written order and for the sub-contractor so to proceed; and for the written order to be delivered by the general contractor later, either during the progress of the extra work or after its completion; that it would be practically suicidal for the business of the sub-contractor with the large general contractors, if he refused to go forward under such circumstances without waiting for the written order, and that the plaintiff, as regards the items in suit, proceeded with the work without waiting for written orders, in reliance upon this general custom.”
It is unnecessary to quote these requests for rulings, which, for the purpose of understanding the decision, are described sufficiently in the opinion. Coburn, mentioned in the twelfth request, was the defendant’s superintendent of construction.