324 Mass. 15 | Mass. | 1949
This is an action of contract in which the plaintiff got a verdict for $2,845.50 on count 2 of the declaration, which was for $3,350 for labor and material on an account annexed. The case comes here on exceptions taken by the defendant.
There was a written contract for $5,450, on which $3,000 was paid on account, leaving a balance of $2,450. The action is for that balance, plus extra work of $885. There was evidence that the plaintiff intentionally deviated from the contract in building the main staircase in the house. The general manager of the plaintiff testified on cross-examination that the main staircase was finished on January 31, 1947, but that a second set of stairs, to replace the
The judge charged the jury that the plaintiff was required to do the work with due dispatch, and was liable if it did not. The defendant gave evidence that the rental value of the house was $250 a month. But since the defendant did not intend to rent the house, the judge charged the jury that he could not be allowed for any loss of rental value. We think this was error. The defendant was entitled to the seasonable use of the house, whether he intended to occupy it himself or to rent it. He was entitled to compensation for undue delay in either case, and the fair rental value could be considered in measuring the damages. C. W. Hunt Co. v. Boston Elevated Railway, 199 Mass. 220, 233 et seq. Neal v. Jefferson, 212 Mass. 517, 523. Jackson v. Innes, 231 Mass. 558, 560. Antokol v. Barber, 248 Mass. 393. Covode v. Principaal, 110 Mich. 672. Mahone v. Thompson, 83 Cal. App. 561. See also Matloff v. Chelsea, 308 Mass. 134, 136.
The judge charged the jury that if the plaintiff built an improper staircase, knowing it to be such, it could not recover. So far his charge was in accord with our cases. Bowen v. Kimbell, 203 Mass. 364, 371. Glazer v. Schwartz, 276 Mass. 54, 57, 59. Andre v. Maguire, 305 Mass. 515, 516. Russo v. Charles I. Hosmer, Inc. 312 Mass. 231, 233. LeBel v. McCoy, 314 Mass. 206, 209. But he added that that rule did not apply in this case, “because they [it] built the
Exceptions sustained.