Norcross Bros. v. Vose, 199 Mass. 81

Norcross Bros. v. Vose

199 Mass. 81

| Mass. | 1908

Braley, J.

This is an action brought to recover a balance claimed to be due for the erection of a building, to be used in the defendant’s business as a manufacturer of pianos. The auditor to whom the case was referred having reported, that with the exception of the item for drafting plans, the plaintiff was entitled to the amount shown by the declaration, less certain deductions for defective work and materials and for failure to *92finish the building within the time named in the contract, it relied unreservedly upon the report, and, not having introduced evidence to control or vary the findings, they must be deemed to have been regarded as the basis upon which the plaintiff’s right to recover finally rested. The allowance for. changes in the foundations, caused by a departure from the original plans, having been conceded, the declination of the defendant to accept the amounts allowed for delay and imperfect construction of the concrete floors narrowed the controversy before the jury to these issues, respectively raised in the first item of the declaration in set-off and by the claim for recoupment. R. L. c. 174, § 1. Blacker v. Boott, 114 Mass. 24, 27. Ford v. Burchard, 130 Mass. 424. Blood v. Wilson, 141 Mass. 25.

If the evidence introduced in support of the counterclaim was competent, the jury were warranted in returning a verdict in favor of the defendant, as they could find the entire damages suffered from a failure to comply with the contract more than exceeded the entire amount demanded. The plaintiff, while taking no exception to the admission of this evidence, and offering no rebuttal, then requested the justice to rule, by the terms of the contract, the plaintiff having been dissatisfied with the decision of the architect as to the number of days chargeable to it for delay in the construction of the building and having requested arbitration of the dispute, which the defendant refused, the defendant could not recover damages from the plaintiff, as an award was a condition precedent to the right to bring suit. It also asked for a further ruling, that as the architect, under the authority conferred upon him to approve payments, had given a final certificate for the full amount demanded, the claim in recoupment could not be maintained, or, if this ruling was refused, then the defendant was bound by the allowance for defective work made by the architect, and the plaintiff was entitled to recover this balance without further deductions. We are of opinion that the denial of these requests was right. It may be assumed from the reference in the closing sentences of articles seven and eight, that the parties intended to incorporate the provisions as to arbitration found in article three, and make them applicable in the same manner to this part of the contract. If the entire contract is examined, it is seen that it *93was not the purpose of the parties, except as to the requirements of article five, to make the action taken by the architect upon the various details of construction as the work progressed final, and in this respect the contract differs from those construed in National Contracting Co. v. Commonwealth, 183 Mass. 89, 92, Norcross v. Wyman, 187 Mass. 25, and White v. Abbott, 188 Mass. 99, where the determination of the architect or supervising engineer upon such matters was held to be conclusive. See Hebert v. Dewey, 191 Mass. 403, 408. Instead, when called upon to act, his decision, if unsatisfactory to either party, was to be referred to arbitration for final settlement. But article six, upon which the set-off rests, contains no reference to either mode of adjustment. It stipulated that, if the completion of the building should be delayed beyond the time named, liquidated damages at the rate of $50 a day should be paid by the plaintiff, “ until the whole of said work is fully completed.” Hall v. Crowley, 5 Allen, 304. If not conceded, it was undisputed that the limit had been exceeded by sixty-five days, before the building was finished. While the auditor’s decision exonerated the defendant from any breach of article eight, the plaintiff has constantly asserted that much of this delay was caused by the defendant’s neglect, and default in performance, for which under the provisions of article seven he should be held liable. By construing articles six, seven and eight as dependent, and providing for a settlement without litigation of all questions of amount and value, it seeks to read into article six the arbitration clause. But if under article seven the defense of the loss of time attributable to the defendant’s failure in providing materials and labor to be furnished by him was fully available under the auditor’s finding, that the limitation within which the demand must be presented had been waived, the plaintiff had expressly agreed to pay a fixed amount for each day’s delay, from which it had not been released. This provision was not made dependent upon the agreement for an extension of time, but is distinct. It is not a promise to pay whatever sum either the architect or arbitrators might determine, but to pay at the rate named for a definite period, even if that period might be shortened, if the plaintiff found it necessary, in avoidance, to resort to the provisions for its protection contained in article seven. The *94principal agreement to erect and finish the building for the consideration the defendant agreed to pay, and the agreement to pay liquidated damages under article six if the defendant claimed them, were independent provisions to neither of which was attached a stipulation that until the amount due had been settled by arbitration no suit for either the price or the damages should be maintained. An award not having been made a condition precedent to the right to sue, each was at liberty to resort to the courts for a settlement of their differences. Nute v. Hamilton Ins. Co. 6 Gray, 174, 181. Rowe v. Williams, 97 Mass. 163. Hood v. Hartshorn, 100 Mass. 117. White v. Middlesex Railroad, 135 Mass. 216, 219. Reed v. Washington Ins. Co. 138 Mass. 572, 576. Clement v. British American Assurance Co. 141 Mass. 298. Hutchinson v. Liverpool & London Globe Ins. Co. 153 Mass. 143. Lamson v. Prudential Ins. Co. 171 Mass. 433. Norcross v. Wyman, ubi supra. Hebert v. Dewey, ubi supra. Lewis v. Brotherhood Accident Co. 194 Mass. 1, 4. Hamilton v. Home Ins. Co. 137 U. S. 370. Scott v. Avery, 5 H. L. Cas. 811. Collins v. Locke, 4 App. Cas. 674. Viney v. Bignold 20 Q. B. D. 172. Dawson v. Fitzgerald, 1 Ex. D. 257.

The plaintiff, although declaring on the contract, could recover only on the account annexed, and the defendant not having been deprived of the protection and benefit of the contract, the amount recoverable is limited to the agreed price, after deducting payments and all damages suffered from the plaintiff’s breach of its various stipulations. Hayward v. Leonard, 7 Pick. 180. Blood v. Wilson, 141 Mass. 25. Burke v. Coyne, 188 Mass. 401, 404.

By article nine, all instalments as they accrued were payable only on the architect’s certificate, and by article ten, while the certificate for the final payment is to be regarded as “conclusive evidence of. the performance of the contract, ” even then “ no payment should be construed to be an acceptance of defective work or imperfect materials.” It was uncontroverted that, some time after asserting that it had completed the work, the plaintiff mailed to the defendant a bill purporting to be a statement of the full amount payable in final settlement but containing no deductions as to any of the disputed matters. While this bill was held by the architect, to whom it had been submitted, the *95architect received a letter from the plaintiff setting forth the grounds of the defendant’s dissatisfaction, with a statement in reply, and requesting, that their differences might be reviewed, and decided. Having received full instructions as to the particulars of their dispute, the qualified indorsement of approval which appears upon the bill should be read in connection with the reply to the plaintiff’s request. It is evident that, with these papers before him, he reached the conclusion that upon both grounds a very substantial sum should be deducted, and, after having audited and approved the items with certain minor ex-* ceptions, owing to the radical disagreement between them, left the final amount to be adjusted by the parties, if they settled according to his recommendations. Manifestly, this restricted indorsement could not have been intended, nor can it fairly be construed within the meaning of the contract, as a final certificate, which should be treated as conclusive evidence of a full performance. But, if given effect as a certificate, the architect’s approval did not bind the defendant to the acceptance of either work or material not in accordance with the contract or preclude him from the recoupment of damages.

The instructions given as to the measure of damages also are said to have been in part erroneous, and misleading. The finding of the auditor that the concrete floors were not constructed in accordance with the specifications was unquestioned. Not only was the alignment imperfect and the workmanship poor, but the material used for topping, instead of being composed of the ingredients specified, showed the presence of foreign substances, which not only detracted from the appearance of the floors but being imbedded in their surface became loose as the floors were used, leaving small cavities, which as a source of dust seriously depreciated the value of the building for use as a piano factory. The plaintiff having failed to comply with the contract, and the defective work not having been accepted, the defendant could recoup as damages the difference between the value of the floors if they had been built as designed, and their value as built and left by the plaintiff. Burke v. Coyne, 188 Mass. 401, 405, and cases cited. Eastern Expanded Metal Co. v. Webb Granite & Construction Co. 195 Mass. 356.

This general rule was given and fully explained. The jury, *96however., had viewed the premises, and what they had seen as to the condition of the surface and general character of the work being evidence of its value to be considered with other testimony, the judge directed their attention to the defendant’s position, that the only feasible way in which the floors could be rendered serviceable was to reconstruct the surface by putting on the finish called for by the contract. Smith v. Morse, 148 Mass. 407, 409, 410. They then were instructed, if they found that, instead of using the floors as they had been left, resurfacing was not only a reasonable but a practical method of repairing the defects, their estimate of the cost would measure the extent of the damages. But if they deemed such repairs to have been inexpedient, or the evidence was insufficient to enable them to estimate the probable expense, they were to givey the matter no further consideration. These instructions being the equivalent of saying that, the plaintiff having broken the contract, the damages suffered by the defendant were measured by the difference between the value of the floors when finished in accordance with the specifications and their value in the condition in which the plaintiff left them, the plaintiff has no just cause for complaint. Veazie v. Hosmer, 11 Gray, 396. Olds v. Mapes-Reeve Construction Co. 177 Mass. 41, 43. Hebb v. Welsh, 185 Mass. 335, 337. By the terms of the report the verdict is to stand.

So ordered.