White v. McLaren

Knowlton, J. .The contract signed by the parties is peculiar. The only promise of the defendants contained- in it is to furnish certain stock and materials. The paper containing the specifications is referred to for the single purpose of showing what the stock and materials are. It was not identified by the signatures of the parties, as the contract says it was; but it was otherwise sufficiently identified, and the fact that it was not signed is immaterial. The stock and materials were to be those mentioned in the specifications, and the contract is the same as if they had been described in the formal writing which was signed. No part of the specifications except the statement of the stock and materials is incorporated into the contract. While the promise of the defendants is meagre in its language, enough appears in the contract to show that thej7 were to erect a building. The provisions as to the time when the work was to be commenced, as to the payments to be estimated upon the value of the work and materials, and as to the discharge by the defendants of claims on the building for work as well as for materials, imply that the term “stock and materials” was intended to include work necessary to incorporate the stock and materials into the structure of the completed building. The language “ all stock and materials of every name and nature mentioned in the specifications, or necessary for the proper performance of the work so shown or described, and under the superintendence of George R. Clark, architect,” taken in connection with the specifications and the other parts of the contract, must be construed to mean stock and materials when wrought and made a part of the building, and to include not only the crude materials, but the labor involved in finishing them and putting them in position so as to make such a house as the specifications contemplated. After the general description of the building, the specifications contain this clause: “ The work to be left clean and whole, and warranted tight, including roof, for two years.” In another [557] part, after a particular description of the materials and mode of construction of the gutters and conductors, and also of the roof, are found these words: “ All to be guaranteed for one year from completion of the building.” Either of these expressions, if contained in the contract, might be held to be, not merely a stipulation as to what the quality and characteristics of the roof should be, but a collateral express warranty, which would continue in effect, one for one year and the other for two years after the completion of the building. In some circumstances, the rights of the plaintiffs and the measure of damages under such a contract might not be the same as under a contract relating merely to the nature and condition of the roof at the completion of the work. The trial proceeded on the theory that, collateral to the stipulation. as to the nature and quality of the roof, there was an express warranty that it should continue in good condition for at least one year. In this we think there was error. Using the specifications merely to show what kind of work and materials were called for, their effect in this part is to bind the defendants to construct a roof of such a sort as would remain tight for two years. When the building was coinpleted and the plaintiffs took possession of it, the defendants did not remain under a contract of continuing warranty that gave them any rights or created against them any liabilities as to the care or condition of the roof during that period; but if the roof was not such as was called for in respect to materials and workmanship which could be relied on to prevent leaks for two years, the plaintiffs might recoup from the contract price, as damages, the difference between the value of the building as constructed and what it would have been if the house had been built according to the contract; or, if the building had been paid for before the defect was discovered, they might bring an action to recover back that difference. In determining such damages different elements are proper for consideration in different cases, according to the nature of the defect. Sometimes the measure of damages is the necessary cost of making the work according to the specifications. If a loss of the use of the premises for a time would naturally be involved, that should be taken into the account. We can imagine a defect of such a kind that the probability of the owners [558] using the house without discovering it, and suffering damage to the building in such use of it, might be considered in fixing its value as constructed. The defect might be of such a character as to diminish the value of the house but little, while to make the work conform literally to the contract would involve reconstruction at unreasonable and disproportionate expense'. The question ordinarily is, How much less is the building fairly worth than it would have been if the contract had been performed? Hayward v. Leonard, 7 Pick. 181. Veazie v. Hosmer, 11 Gray, 396. Powell v. Howard, 109 Mass. 192. In the present case, the specifications in one part call for a roof of such a kind as shall be tight for two years, and we think that is the controlling stipulation as to the soundness of the roof. The other clause, which described the gutters and conductors as well as the roof, includes all their qualities, and requires these parts of the building to be such as will continue in good condition for one year. The plaintiffs are entitled to damages fpr the defect in the roof, to be estimated upon the principles which we have stated, subject to such deduction as should be made on account of the payment of a part of the damages in the former settlement between the parties. Exceptions sustained.