Wellington v. Crowley

230 Mass. 107 | Mass. | 1918

Loring, J.

It is expressly provided in the contract between the plaintiff and the defendant that the defendant was “to furnish a suitable location for the crusher.” If the “location for the crusher” furnished by the defendant was a location where stone could not be crushed, it was not a “suitable location” within the true meaning of this provision of the contract. The reason why stone could not be crushed at the location furnished by the defendant (if stone could not be crushed there) is of no consequence. If stone could not be crushed at the location furnished by the defendant because crushing stone there was a violation of the rights of those living in the neighborhood, the location was no more a " suitable” one than is a location where for physical reasons the work of crushing stone could not be carried on. See in this connection Evans v. Reading Chemical Fertilizing Co. Ltd. 160 Penn. St. 209, 227; Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562, 571; Teilman v. Plock, 21 Fed. Rep. 349, 350.

If the action taken by the neighbors had been taken after the plaintiff had begun work at the location furnished by the defendant, questions would have arisen not presented by this record. It is stated in the report that the injunction forbidding the crushing of stone at the location furnished by the defendant was granted “just prior to the beginning of the crushing operations.”

So too, if it had appeared on the record that part of the damages found by the auditor included work done before the action was taken by the neighbors, a question would have arisen which has not been argued by the defendant. The report does not state how the damages (amounting to $968) found by the auditor were computed, and the defendant has confined his argument to the true meaning of the provision of the contract requiring the defendant to provide “a suitable location for the crusher.” The presiding judge ends his report with these words: “If my finding was wrong, then judgment is to be entered for the plaintiff in the 'sum of $968, with interest from the date of the writ.” The finding was wrong. It follows that judgment is to be entered for the plaintiff in the sum just stated, and it is

So ordered.