Stuart v. City of Cambridge

125 Mass. 102, 1878 Mass. LEXIS 30

• Court: Massachusetts Supreme Judicial Court
• Decided: July 24, 1878
• Status: Published

Opinion

Morton, J.

By their contract with the city of Cambridge, the plaintiffs agreed “ to provide all materials and perform all labor required in the erection and completion of the masonry of a building for the party of the second part, to be located upon its estate situated on the corner of Sacramento and Oxford streets, in and for said city, according to plans, drawings and the accompanying mason’s specifications, prepared by J. H. Littlefield, architect, bearing even date herewith, and signed by the parties hereto ; and such other drawings and detail explanations as may be considered necessary for the progress and completion of the building, according to the true intent and meaning thereof.” Referring to the mason’s specifications, we find the provision that “ all the basement walls will commence fourteen inches at least below the basement floor, and as much deeper as necessary to guarantee a firm and solid foundation. The walls will all be of the thickness and construction indicated by the drawings, laid and completed in the most thorough and workmanlike manner.”

Under their contract, the plaintiffs were required to dig to any depth necessary to secure a solid foundation. They were to make excavations “ to the requisite length, breadth and depth for the basement, walls, foundations, piers,” &e., and generally to do all the masonry “ necessary to fully finish and complete all parts of the building according to the true intent and meaning of the plans, drawings and the mason’s specifications, whether particularly herein described or not.”

By the fair construction of this contract, the plaintiffs agreed to do all the work necessary to secure a solid foundation. They took the risk of its being necessary to drive piles in order to secure such foundation. The ruling of the Superior Court as to the construction of the contract was therefore correct.

The evidence offered by the plaintiffs, that they made their estimate according to a plan made by the defendant’s architect, showing a section of the wall which required only a depth of fourteen inches, and did not require any piles, and that it was customary for other persons engaged in the same business to make estimates in similar cases in the same manner, was incompetent, because it tended to control and vary the written contract.

The plaintiffs also offered to show that they drove the piles and did the work for which this suit was brought, under the direction of the defendant’s architect, who was the agent of the defendant; that they contended that the work was not included in their contract, and he told them “ to go ahead and do the work as he directed, and they would be paid for it.”

We are of opinion that this evidence was rightly excluded. The written contract carefully provides that any additions to or deviations from the plans and specifications shall be directed in writing by the committee or architect, and that “ it is expressly agreed that no alterations or additions are to be paid for unless bo directed in writing.” Ho evidence was offered of any waiver of this provision by the defendant, or of any authority in the architect to waive it. This clause was intended to protect the defendant against claims for extra work under alleged oral directions or contracts. If the evidence offered can be construed to show an oral promise by the architect, founded upon a sufficient consideration, to pay for the work sued for as extra work, it was made without authority, and is not binding upon the defendant,

Exceptions overruled.