Morrill & Whiton Construction Co. v. City of Boston

Braley, J. Under the building contract entered into between the parties, as the plaintiff went forward in the performance of its part of the undertaking, a dispute arose whether by the terms of the agreement it was required to plaster the building, and an arrangement was then effected by which it was done, with the provision that whether the plaintiff was entitled to extra compensation, or must be content to accept the round sum specified in the contract, was a question that should be left open for determination in the suit now before us. — 220 — Its solution depends on the construction of the contract, and if the intention of the parties can be ascertained it must control, and for that purpose the whole contract is to be considered rather than an inquiry that is limited to the part relied on by the plaintiff to support its contention. For this purpose the order in which the various clauses and divisions are arranged furnishes little aid, for the modifications made in that part called specifications of the contract precede section two, which contains the phrase “ furnish and do everything required therefor except the plastering and the parts of tlie heating and ventilating, and 'plumbing systems”, on which the plaintiff relies for exemption and relief, and these changes contain a specific requirement for the plastering of the ceilings and the walls with a designated number of coats, or otherwise as called for, while section six to which this change refers follows section two, and the original specification with its modification are each classed under the general description of lathing and plastering. If the language of either section had contained the only reference to the subject no difficulty would arise, but both being in same agreement they are inconsistent, and cannot be reconciled, yet it does not follow that the plaintiff can recover. The main object to be accomplished is stated in section two which requires the plaintiff to “erect and complete a municipal building”, and the careful details provided for the kind and quality of the materials to be used, including those for which this suit is brought, makes it reasonable to suppose that these specifications would not have been originally inserted, and subsequently modified in paragraphs preceding and following the excepting clause, and hence more nearly expressing the final determination of the parties, unless in conformity to such a general design, for where in a contract like this a repugnancy is found between clauses, the one which essentially requires something to be done to effect the general purpose of the contract itself is entitled to greater consideration than the other which tends to defeat a full performance, and repugnant words may be rejected in favor of a construction which makes effectual the evident purpose of the entire instrument. Fowle v. Bigelow, 10 Mass. 379. Wade v. Howard, 6 Pick. 492, 499. Heywood v. — 221 — Perrin, 10 Pick. 228. Folsom v. McDonough, 6 Cush. 208. Smith v. Davenport, 34 Maine, 520. Under the construction for which the plaintiff contends a very substantial part of the contract must be nullified, and less violence is done if the general words on which it relies are made to yield to the specifications already sufficiently discussed, moreover, the plaintiff having sued for labor and materials must sustain the burden of proof that both were furnished under a contract that required the defendant to pay for them, but it failed to maintain this issue of fact before the tribunal whose finding thereon is final, and as no error of law appears, the judgment of the Superior Court is affirmed. Judgment affirmed.