Pickering v. Greenwood

114 Mass. 479 | Mass. | 1874

Endicott, J.

The written contract on which this action id brought contains the express provision that all the work agreed to be done upon the defendant’s lot in Reading Cemetery was to be completed, except the urns, on or before December 1, 1871. It was not done at that time; there was no offer to do it until May, 1872; it does not appear that any work was ever done on the lot by the plaintiff; and the jury found that there was no extension of the time beyond December 1.

The time being stated in the contract when the work should be finished, it was of the essence of the contract, and the work must be performed within that period.

It was for the court to decide upon the construction of the contract, and it was not for the jury to determine what was a rea< sonable time after December 1 for the completion of the work; Quarles v. George, 28 Pick. 400. Smith v. Faulkner, 12 Gray 251.

This is not a case where, upon failure to perform the contract as stipulated, the plaintiff can recover on a quantum, meruit. None of the materials were furnished, and none of the labor was performed on the lot; the defendant received no benefit whatever for which he can be called upon to pay, and the case is clearly within the exceptions stated .to the rule as laid down in Hayward v. Leonard, 7 Pick. 181.

Exceptions overruled.