Wallis v. Inhabitants of Wenham, 204 Mass. 83

Wallis v. Inhabitants of Wenham

204 Mass. 83 | Mass. | 1910

Sheldoh, J.

The plaintiffs contend that the acts of the defendant in causing delay in the execution by the plaintiffs of their contract resulted as matter of law in abrogating the time limit fixed by the agreement of the parties, and left the plaintiffs under no further obligation as to this matter than the duty of completing the construction of the building within a reasonable time. They also contend that for any failure on their part to complete their work within a reasonable time they could be " held only for the actual damages shown to have been caused thereby to the defendant, and not for the liquidated damages *87fixed by the original agreement. There are some decisions, and some dicta in other decisions, which sustain their contention. Dodd v. Churton, [1897] 1 Q. B. 562. Holme v. Guppy, 3 M. & W. 387. Willis v. Webster, 1 App. Div. (N. Y.) 301. Graveson v. Tobey, 75 Ill. 540. And we understand it to be universally agreed that under such an agreement as this the owner cannot hold the contractors liable in the amount of the stipulated damages for any delays which have been due to his own fault. Russell v. Bandeira, 13 C. B. (N. S.) 149. Kenny v. Monahan, 169 N. Y. 591, affirming S. C. 53 App. Div. (N. Y.) 421. Home Bank v. Drumgoole, 109 N. Y. 63. Marsh v. Kauff, 74 Ill. 189. Palmer v. Stockwell, 9 Gray, 237. Amoskeag Manuf. Co. v. United States, 17 Wall. 592. But in many of the decisions in which contractors have been completely exempted from such liquidated damages for a failure to finish the whole work within the stipulated time it has been either assumed or found as a fact that the whole of the delay was due to the fault of the owner or of persons for whose conduct the owner was responsible. Ludlum v. Vail, 166 N. Y. 611, affirming Smith v. Vail, 53 App. Div. (N. Y.) 628. Perry v. Levenson, 82 App. Div. (N. Y.) 94. Boden v. Maher, 105 Wis. 539. Weber v. Collins, 139 Mo. 501. White v. Fresno National Bank, 98 Gal. 166. Erickson v. United States, 107 Fed. Rep. 204. Altoona Electrical Co. v. Kittanning & Ford City Street Railway, 126 Fed. Rep. 559. District of Columbia v. Camden Iron Works, 15 App. Cas. (D. C.) 198. Dunavant v. Caldwell & Northern Railroad, 122 N. C. 999. So in Cornell v. Standard Oil Co. 91 App. Div. (N. Y.) 345, the contractor finished the work as soon as the owner allowed him to do it. This was the principle applied in Champlain Construction Co. v. O’Brien, 117 Fed. Rep. 271, in which the owner was found to be principally at fault for the delay which had occurred, but it was impossible to apportion the responsibility between him and the contractor. In other cases it appeared that the owner had not performed certain obligations on his part which, upon the proper construction of the contract, were found to be conditions precedent to the obligation of the contractor to finish his work by the stipulated time or pay the liquidated damages for his delay. The most frequent example of such a construction occurs when the contractor’s agreement *88to have his work completed at a stipulated period and in default thereof to pay liquidated damages at a fixed rate is accompanied by an engagement of the other party that full opportunity to begin and prosecute the work shall be given to the contractor on or before some previous fixed day. Until the condition precedent has been performed the liability of the contractor under the agreement as to the time of completion does not accrue. Gilbert & Barker Manuf. Co. v. Butler, 146 Mass. 82, 84, 85. Dannat v. Fuller, 120 N. Y. 544. Weeks v. Little, 89 N. Y. 566. Granberg v. Gardner, 51 App. Div. (N. Y.) 610. Deeves v. New York, 60 N. Y. Super. Ct. 339. Long v. Pierce County, 22 Wash. 330. Standard Gaslight Co. v. Wood, 61 Fed. Rep. 74. In other cases the delay for which the owner was responsible had so altered the circumstances, — for example by postponing the construction to a more unfavorable season of the year,—as to make it manifest upon a fair construction of the agreement that the parties could not have intended that the stipulations as to time should still remain in force. King Iron Bridge & Manuf. Co. v. St. Louis, 43 Fed. Rep. 768. Lauer v. Brown, 30 Barb. 416, 420. Haughrey v. Thiberge, 24 La. Ann. 442. Gutmann v. Crouch, 134 N. Y. 585. See Drumheller v. American Surety Co. 30 Wash. 530.

In the case at bar, however, none of the special circumstances above stated have been found to exist. The plaintiffs chose to make an agreement that their entire work should be finished by January 1, 1907, and in default thereof that they would pay the sum of $10 for each day thereafter while the work should remain unfinished. They made this agreement absolutely, subject only to the exception that in certain contingencies, upon their written request, they might, be allowed such additional time as the architect in charge of the work should certify. It is not claimed that this exception is now material to be considered. Their work was not finished at the appointed time; none of the special circumstances which might avail to exonerate them completely from the liability which they voluntarily assumed have been found to exist; and they must be held to that liability, subject only to the limitation that the defendant shall not be allowed to recover from them damages for the delay which was caused by the acts of the defendant itself. *89Morrison v. Richardson, 194 Mass. 370. This was assumed to be the rule in Phaneuf v. Corey, 190 Mass. 237, and in Norcross Brothers Co. v. Vose, 199 Mass. 81, 91, 92. It is implied in the language used in Davis v. La Crosse Hospital Association, 121 Wis. 579, and in Amoskeag Manuf. Co. v. United States, 17 Wall. 592. The builder is not relieved from his contract; but the owner cannot recover for delays which have been caused by himself or by those for whose conduct he was responsible. The parties are taken to have understood that the contractor’s time limit was extended by the amount of such delays. Curry v. Olmstead, 26 R. I. 462, 463, 464. Huckestein v. Kelly & Jones Co. 139 Penn. St. 201. White v. Braddock Borough School District, 159 Penn. St. 201. Lilly v. Person, 168 Penn. St. 219. Focht v. Rosenbaum, 176 Penn. St. 14. Abbott v. Gratch, 13 Md. 314. Small v. Burke, 92 App. Div. (N. Y.) 338. Hebert v. Weil, 115 La. 424. Reichenbach v. Sage, 13 Wash. 364, 372. Vanderhoof v. Shell, 42 Ore. 578. Texas & St. Louis Railway v. Rust, 19 Fed. Rep. 239. Mason v. Rempe, 41 S. W. Rep. 694. Neblett v. McCraw, 41 Tex. Civ. App. 239. Boston Store v. Schleuter, 88 Ark. 213. Chicago Bridge & Iron Co. v. Olson, 80 Minn. 533. The same rule under a similar stipulation as to the duty of the owner was applied on the contention of the contractor in Snead Co. Iron Works v. Merchants Loan & Trust Co. 225 Ill. 442.

It follows that both of the instructions requested were rightly refused; and as we have before us only the exceptions of the plaintiffs we need not consider whether under the terms of the agreement and upon the evidence before him the judge at the trial was warranted in finding that the plaintiffs had been at all unduly delayed by the defendant in the prosecution of the work contracted for.

Exceptions overruled.