174 Mass. 563 | Mass. | 1899
This is an action of contract to recover a balance claimed as due to the plaintiffs for concreting a bicycle track in Fall River. The work was done under a contract in writing whereby the plaintiffs agreed to furnish the labor and materials, and the defendant, in consideration of the promises of the plaintiffs, agreed as follows : “ To pay to the said party of the second part the sum of fifty-five cents per square yard for all concreting, in the following manner, that is to say, in instalments in proportion as the work progresses, but not to exceed at any time eighty-five per cent of the estimated cost of the work executed, and the balance thirty-one days after the said work shall have been completely finished and delivered and ac
The defendant contends, under the provision of the contract above quoted, that the discovery of a defect in the work within thirty-one days after the completion and delivery of it would work a forfeiture of the plaintiffs’ claim. But we are of opinion that this is not the meaning of the provision. The defendant first agrees absolutely to pay for the concreting called for by the contract, a stated price per square yard. He then makes an agreement in regard to the manner of payment, that is, to pay by instalments; and he fixes the time when the balance shall become due, after making the prescribed payments during the progress of the work. This stipulation simply permits the postponement of the payment for a reasonable time after the expiration of thirty-one days, and allows a reasonable deduction from the contract price if a defect in the work is discovered. In regard to the amount ultimately to be paid it does not affect the general rule of law applicable to such contracts. The instructions requested were rightly refused, and the instructions given were correct and sufficient. jExceptions overruled.