Loftus v. Jorjorian

80 N.E. 235, 194 Mass. 165, 1907 Mass. LEXIS 934

• Court: Massachusetts Supreme Judicial Court
• Decided: February 26, 1907
• Status: Published

Opinion

Sheldon, J.

The second, third and fourth rulings asked for by the plaintiff apparently were given, but the judge ruled that the amount of the items mentioned, so far as proved, if not allowed in set-off, could properly be used in reduction of the contract price. This was correct. The promise of the defendants in Article IX. of the agreement sued on was not to pay to the plaintiff the sum therein mentioned, but to pay said sum “ subject to additions and deductions ” as before provided in the agreement; and these items are properly to be included in such deductions. Accordingly they were not deducted from the plaintiff’s claim by way of recoupment, but were deducted from the contract price to ascertain the sum with which the plaintiff was to be credited. For the same reasons it is evident that the plaintiff’s fifth request was given.

The judge correctly ruled that the architects’ certificates, there being no evidence of bad faith in their issue, were conclusive as to all matters within their authority. Hebert v. Dewey, 191 Mass. 403. White v. Abbott, 188 Mass. 99. These certificates were properly and seasonably made; and the judge rightly gave them their full effect.

The exception to the refusal to give the first request has not been argued; and we treat it as waived.

Exceptions overruled.