Davis v. Galloupe

111 Mass. 121

Opinion

Chapman, C. J.

By the express terms of the contract set forth, the plaintiffs were to furnish the granite mentioned according to the plans and specifications furnished by the architect named, as fast as he might require, and all the fitting and rebating necessary, and were to do it for the sum named. The defendant was to pay the price specified, on the terms and conditions expressed, but did not agree to furnish any patterns. It appears that it was necessary to have such patterns; but this was necessary as an incident to the performance of their work by the plaintiffs according to their contract, in the same sense that it was necessary to have tools and'workmen. As the plaintiffs actually prepared the patterns, it is obvious °that it was not necessary that the defendant should furnish them to enable the plaintiffs to do the work. By the legal construction of such a contract, the plaintiffs were to furnish the patterns. A usage that the defendant should pay for them would be contrary to the terms or construction of the contract, and therefore would not not be valid. Potter v. Smith, 103 Mass. 68. Exceptions sustained.