Carberry v. Farnsworth

Knowlton, J. This is an action to recover for extra work in grading, and laying pipes, and stone work on an estate of the defendants in Dedham. The plaintiff was a sub-contractor under one Whitcomb, who had a contract to build a house and stable, and to grade and prepare the grounds. The plaintiff’s contract with him included all the grading, trench digging, stone work and pipe laying, according to the plans and specifications in the contract betweeen Whitcomb and the defendants. It was in evidence that the land was wild land, and very high — a ledge of mountain and forest — when the plaintiff went to work there. In the progress of the work certain changes were made, some of which were admitted by the defendants to be departures from the original contract, in order the better to complete the construction according to their general purpose and desire. In regard to most, of the changes the parties are in dispute, the defendants contending that they were either corrections of mistakes of the plaintiff in the work under the contract, or made for his convenience, to save him from greater expense which would have been involved in complying literally with the requirements of the contract; while the plaintiff contends that they were directions for additional work. The defendants, who were husband and wife, were hardly ever on the ground on working days during the progress of the work, but the defendant, William Farnsworth, made three voyages to Europe during the time, and he was represented in the supervision of the work by one Smith, and by Longfellow, the architect. Most of the changes were made as a result of conversation between the plaintiff and Smith, who was on the premises very often to see what was being done. The principal question before us arises on the refusal of the judge to give two instructions requested by the defendants: “ First. There was no evidence to warrant a verdict for the plaintiff except upon the items contained in the auditor’s report. Second. The same request in detail as to each item of the declaration, except as to those items in which the auditor found for the plaintiff.” The first question is whether there was any evidence to warrant a finding that Smith was authorized to make changes in the work to be done under the specifications, and to bind the [402] defendants by his directions for such work. We have no hesitation in saying that there was such evidence. The plaintiff testified that the defendant, William Farnsworth, said that he was busy, or was about to go away, and that he had left Smith and the architect Longfellow there to represent him. Smith testified that, assuming to represent the defendants, he directed certain work to be done outside of the specifications, and that they never objected. Under the circumstances of the case, it does not require much direct testimony of authority, to prove that Smith was left to represent the defendants, with a certain discretionary power to change details as might be necessary to accomplish their general purpose in erecting the buildings. He had laid out the grounds for the defendants, and prepared the plans for the work which the plaintiff contracted to do. As excavation proceeded, the existence of solid ledges beneath the surface, as well as other causes, naturally suggested some changes, and the jury might well find from the testimony ^hat Smith was authorized to order them to be made. The finding of this authority extends to all the items claimed by the plaintiff. The next question is whether there was evidence that the plaintiff did work outside of his contract under Smith’s direction. The question before us is not what is the weight of the evidence, but whether there was any evidence in favor of the plaintiff on this point. Looking at the printed report of the testimony, we think it probable that the conclusion of the auditor was correct rather than that of the jury. But we think there was evidence on which the jury might find as to each item that the plaintiff did work outside of his contract by direction of the defendants’ representative, and although as to most of this work it seems probable that it was demanded and performed as a part of that required by the contract, we cannot say as matter of law that the judge was bound so to rule, or the jury so to find. It would serve no useful purpose to consider the testimony as to each item in detail. We are of opinion that this question was rightly submitted to the jury. It was in dispute whether the profile plan of the driveway extending into the street was in existence when the contract was signed, and the question whether the driveway terminated at the line of the street or extended to the centre of it, was properly left to the jury. [403] In regard to the third item, there was an error of law in the instructions. The specification for the drainage has this language : “ All stone work to be laid dry, except where otherwise specified,” etc. In the specifications for masonry for the house and stable is this requirement: “ Fill the walls solidly as laid with mortar, carefully pointed inside and outside above ground.' Below ground, the outside of walls to be smooth as possible, and plastered from footings to grade with \ cement mortar; this is to be allowed to dry and the wall approved before the filling is commenced.” The judge instructed the jury that the walls of the buildings below the ground were to be laid dry under» the contract, and that if the plaintiff filled them with mortar at the request of Smith, he was entitled to be paid for it as extra work. We think that the specification in regard to drainage has no application to the walls of the buildings, and that the provision that the walls below ground were to be plastered implies that they were not to be dry walls, but laid in mortar. Going back to the previous sentence, we are of opinion that the words, “ above ground ” qualify “ carefully pointed inside and outside,” leaving the clause, “fill the walls solidly as laid with mortar,” to apply to the walls both above and below the surface of the ground. The word “ filling ” near the end of the quoted requirement refers to filling with earth around the walls. The jury in reply to an inquiry of the judge, when they returned their verdict, said that they allowed the plaintiff $50 on this item. This error can be corrected by the remission of this amount by the plaintiff. It also appeared from an answer of the jury at the same time, that the jury, by an oversight, allowed $44 for a part of item twelve, for which the plaintiff had waived his claim. Inasmuch as no request nor ruling was made in regard to this, the verdict would not be disturbed on account of it if there were no other error; but since the exceptions must be sustained unless the plaintiff remits the amount allowed under item three, this mistake may well be corrected at the same time. The order therefore will be, Exceptions sustained, unless the plaintiff remits from the verdict $50 and $44, $94 in all, with interest from the date of the writ to the date of the verdict. If he remits this amount within fifteen days after the rescript is sint, the entry will be, Exceptions overruled.