Daly v. Kingston

Knowlton, J. This case comes before us on a report which presents the question whether it should have been ruled as matter of law that the “ No. 12 Phila. & Boston Face Brick Co.’s red pressed brick fireplace ” mentioned in the specifications, was a part of the brick work referred to in the following agreement in writing: “ Lawrence, Mass., August 19, ’98. I, the undersigned, do hereby agree to complete brick work, lathing and plastering, as prescribed in plans and specification, on house of John J. Cummings at Lawrence St. Cor. Chestnut, for §900. Maurice Daly.” We are of opinion that it should have been so ruled. The specifications under the head “ Brick Work ” contain eight paragraphs, the first two relate to the chimneys, then comes the word “ fireplace ” in large letters, with six paragraphs, as follows: “ Provide proper foundation for and furnish and set in position as shown on plan a No. 12 Phila. & Boston Face Brick Co.’s Red Pressed brick. fireplace. To be provided with Murdock Cast Iron thwat and ash dump. “ The bricks to be laid in dark red mortar, 1-2 cement, laid to very close straight joints and in a thoroughly workmanlike manner. “ Start chimneys on stone levellers which Stone mason will leave in cellar. “ The chimneys and piers connected with them to be laid up in pure cement mortar from cellar bottom to level of first floor. “ All partitions enclosing stairways leading to upper floors must be filled in between studs with bricks and mortar and plastered on both sides on metal lathing, according to Article 7 of Form No. 60 State Inspector’s Spec. Blank. “ Where floor timbers rest on partition caps the spaces between them from cap to top of timbers must be filled in solid with good light bricks laid in lime mortar, and all joints flushed full.” [317] The fireplace mentioned in the first paragraph is described and pictured in a catalogue of the Philadelphia and Boston Face Brick Company, and the method of obtaining it was to order it by its number from this company, who would send the parts complete, with pieces in special shape, and a sufficient quantity of face brick to be laid with them to complete the fireplace. “ The plaintiffs completed core of this fireplace including the flues, that is, the rough brick work for the interior, around and upon which the fireplace as designed was to be put. When afterwards the fireplace was put up, the core had to be trimmed somewhat to make it fit.” It is plain that the last four paragraphs relate to brick work included in the plaintiffs’ contract. It is almost as plain that the paragraph which immediately precedes these, and which prescribes the kind of mortar to be used and the manner of laying the bricks, describes brick work within the meaning of the plaintiffs’ agreement. The front of the fireplace differs from the rest only in the requirement that the material must be of a certain kind which can be procured of only one manufacturer. This material is ornamental brick work which is to be connected with the other brick work. In the general specifications for brick work it is included with specifications for other brick work immediately before and after it. We think, under the admitted facts, that the court should have ruled as a matter of law that the fireplace was included as a part of the brick work referred to in the plaintiffs’ agreement, and that the paroi ¿vidence to show that it was not, was incompetent. According to the terms of the report the verdict must be set aside, and there must be Judgment for the defendant.