241 Mass. 449 | Mass. | 1922
The plaintiff made a written contract with the defendant, a general contractor, to do certain mason work on five houses. The plaintiff was a subcontractor, and her husband was her agent in making the contract and in doing the work. She was paid the contract price, and $130 for extra work. This action is brought to recover for other work which it is claimed by the plaintiff was not included in the contract but was performed at the request of the defendant. The latter contends that it was included in the contract and has been paid for.
The contract recites that the plaintiff is to do “all mason work on cellars according to plans & specifications not including any plastering cellars. . . .”
The first item for which the plaintiff seeks to recover is for constructing four hundred eighty-four square feet of granolithic sidewalk. The trial judge rightly ruled and instructed the jury that the building of the sidewalks is not within the meaning of the contract under which the plaintiff agreed to do all mason work on cellars according to the plans and specifications; and that she was entitled to recover the fair cost of the work if done at the request of the defendant and no sum was named as the price to be paid for it.
In the specifications under “Cement Work” it is recited “Cement walk to front door three feet wide.” The defendant testified that the cement walks were to the front door from the sidewalk; and that “there were walks to the back door, to the cellar door and back door from the sidewalk line.” It thus appears that there were walks built besides those from the front door. Accordingly it could not have been ruled that all the walks built by the plaintiff were covered by the specifications.
The second item is for concreting five cellars. This work as charged for was for cementing the floors of the cellars. The specifications recite under "Cement Work,” “Put in 3" cement floor under heater, size 4,/.x4,/ the rest of floor 2".” Under these specifications. the plaintiff expressly agreed to put in the cement floors in the cellars.
The judge left to the jury the question whether the parties intended that the agreement of the plaintiff to do “all mason work on cellars according to plans & specifications” was to include cementing cellar floors. The specifications are free from ambi
The third item is for constructing five catch basins and piping. Whether these catch basins were a part of the contract or were outside of it and ordered by the defendant was rightly left to the jury to determine.
The exception to the exclusion of the letter offered by the defendant has not been argued and is treated as waived. It was not material upon any issue in the case. The fifth, sixth and ninth exceptions are waived; the second is sustained; all others are overruled. For the reasons stated, the defendant’s motion that the court rule that the plaintiff cannot recover was rightly denied.
As the plaintiff cannot recover for cementing the cellars, the sum of $177 with interest thereon from the date of the writ to the date of the verdict should be deducted from the amount of the verdict, and judgment entered for the balance.
So ordered.