227 Mass. 129 | Mass. | 1917
This is an action to recover damages in two counts for the same cause of action. The first count was for breach of an express warranty, the second for negligence in the performance of work. The jury found for the plaintiff on the first count and we accordingly treat the exception on the footing of a single count for the breach of an express warranty.
In 1905 and 1906 the plaintiff built some houses on Dawson and Templeton streets, Dorchester. The roofing material, Improved Plastic-Slate, was put upon the flat roofs of the houses under a contract and guaranty by one John Mandile who did business under the name of the Improved Plastic-Slate Roofing Company. Mandile caused his business to be incorporated under the name "Improved Plastic-Slate Roofing Co.” and with its organization became its president, treasurer and foreman.
Because the roofs were leaking the plaintiff, after the incorporation, went to Mandile, and the defendant corporation in consequence thereof on June 20, 1907, acting through Mandile made the following proposal to the plaintiff: “We propose to furnish material and labor for repairing all leaks on twelve (12) houses . . . and recover same with a trowel course of Improved Plastic-Slate Roofing for the total sum of One Hundred and Five Dollars ■— $105.00. We guarantee to maintain the above work absolutely water tight, ten (10) years from the date of completion, upon written notice of any defects thereof.” On June 29, 1907, this proposal was duly accepted by the plaintiff and thereupon it became operative as a contract.
At the trial it was not denied that the roofs did leak to the extent asserted by the plaintiff, and the defence there relied upon
There was ample evidence to warrant the submission to the jury of the question whether “written notice of any defects” was given to the defendant in addition to.two letters admitted to have been received and to oral demands to send men to make repairs on the houses in question. The question of the sufficiency of the notices, that is, whether under the contract defects and leaks were required to be specifically pointed out, was not in terms submitted to the jury and no exception was taken to the neglect of the judge to rule thereon. Moreover, as the case was tried, it was sufficient to charge the defendant to prove that it had written notice of any defects in the work it had guaranteed. Soderlund v. Helman, 215 Mass. 542.
The defendant now contends "that both the plaintiff and the trial judge misinterpreted the warranty given by the defendant;” that the contract meant and could mean only that the defendant undertook to repair existing leaks, recover with a trowel course of roofing the places in the roof repaired and maintain the repairs absolutely water tight; and argues that two things are necessary to enable the plaintiff to recover under the contract: first, he must show that the roofs leaked where the repairs were made; and second, he must show that he gave written notice of the defects in the work. The defendant’s interpretation • of the somewhat equivocal language of the contract would have the merit of plausibility were it not for the well recognized canon of construction of written instruments, that to arrive at the intention of the parties the contract is to be read in the light of the circumstances under which it was entered into, and to the further rule that regard should be given to the practical construction put upon it by the parties if the contract be uncertain or indefinite. Buffington v. McNally, 192 Mass. 198. Smith v. Vose & Sons Piano Co. 194 Mass. 193.
The defendant’s exceptions as to evidence relating to damages are predicated on his construction of the contract. As such construction is not adopted, the exceptions fail, and must be overruled.
Exceptions overruled.