Erickson v. George B. H. Macomber Co.

97 N.E. 615, 211 Mass. 311, 1912 Mass. LEXIS 781

Opinion

Sheldon, J.

The question whether the defendant was required to make the third floor water-tight, depending entirely upon the construction of the language of the contract and specifications, was one of law for the court and ought not to have been left to the jury. Globe Works v. Wright, 106 Mass. 207, 216. Goldstein v. D’Arcy, 201 Mass. 312, 317. No doubt, if.the jury had answered the question correctly, this would have been harmless error. Bouvé v. Cottle, 143 Mass. 310, 315. But they did not do so. The contract and specifications stated carefully and particularly just what the defendant was required to do, and the details of the manner in which it was to do this. It was not bound to go further and bring about a result which it had not agreed to accomplish. Evidently the plaintiff had expected and intended to obtain a water-tight floor. But he selected himself the exact means and mode of construction upon which he relied for the accomplishment of his purpose, and stipulated that the defendant should follow precisely the course thus marked out for it. The defendant could not be held to guarantee that this mode of construction would produce a water-tight floor, or to go beyond what it had agreed to do for this end. Burke v. Dunbar, 128 Mass. 499.

The stipulation that the floor was “to be guaranteed and kept in repair for two years” does not import an agreement to keep it water-tight. This could not mean more than a guaranty that the work and materials which the defendant was to supply should remain in good order and condition for the specified time. Certainly it could not imply an agreement that the floor should continue to possess a quality which there was no agreement that it should have.

So far as the ordering of a verdict rested upon this ground, it cannot be sustained. On the contrary the judge should have ruled as requested by the defendant that it was not required that the floor should be water-tight.

But the defendant had agreed to execute all its work “in the best and most substantial manner and to the satisfaction of the architect.” The jury have found that the defendant’s conduct in driving nails through the asphalt was a negligent and improper way of complying with the specifications. We assume that this finding was made upon competent evidence and under proper instructions. If so, it settled the question that the defendant, in this respect at least, had failed to carry out its agreement. Unless there was some other issue that also must be passed upon, it would follow that the verdict for the plaintiff rightly was ordered, and . only the amount of damages would remain open.

But there was another issue in the case. There was evidence that the architect had put in as clerk of the works one Willard, whose duty, according to the testimony of the architect, it was, to the best of his ability, to look after the interests of the owner and to see that the work went on according to the plans and specifications. These was evidence that when the nails were driven into the asphalt to secure the board flooring, this method was approved by Willard, who said that he could see no other way of fastening the flooring. The manner in which the flooring should be fastened was not fixed by the specifications; but on the evidence another method might have been adopted which would not have made holes in the asphalt. The architect gave certificates for the earlier partial payments and for the final payment to be made under the contract, and the whole amount due thereunder was paid by the plaintiff to the defendant. There was evidence that the final certificate was given after some leaks had been discovered; and on all the evidence of the architect himself and that of Cross,

* especially on the re-examination of the latter witness, it could have been found that before the architect in December, 1906, gave the certificate for the final payment, he knew that the nails had been driven into the asphalt and that this had caused at least one leak. The architect to be sure denied this, but it was nevertheless a question for the jury.

Under these circumstances and in view of the fact that no specific manner of driving the nails was provided for in the specifications, the jury might have found that the doing of this work in the way in which it was done had been approved by the architect, that on his approval the work had been accepted by the plaintiff, and that any objection on this ground had been waived and was not open to the plaintiff. The instructions given by the judge upon this issue were very meagre, but we need not consider whether they were open to exception. However this may be, the findings of the jury do not cover the issue thus presented, nor does it appear to have been passed upon at all.

It follows that the findings made did not cover the whole case. They were not sufficient to warrant the ordering of a verdict for the plaintiff. Couilliard v. Eaton, 139 Mass. 105. Under the terms of the report, judgment must be entered for the defendant.

So ordered.

This witness, who was called by the defendant, was the superintendent of a company that had charge of laying the asphalt floor.