O'Brien v. Peck

Hammond, J. This is an action against a builder to recover damages upon the ground of the alleged improper performance of a written contract. At the trial the evidence of improper workmanship was confined largely to the lathing and plastering ; and one of the main questions was whether that kind of work was included in the contract. The contract provides that the defendant “ hereby promises and agrees . . . that he will do and furnish all of the excavating, foundation and carpentering work and furnish all the materials to carry the same to completion including all tools, implements, staging and things necessary to do said work for the erection and completion of a five story wooden hotel building, . . . the same to be done in compliance with the building laws of said Winthrop and the laws of said Commonwealth, and in full compliance and conformity with the plans and specifications made by Harry F. Briscoe for said building.” Payments [54] are to be made according as the building progresses, the sixth payment to be made “when the plastering is completed,” and the last payment “ after the entire completion of said building and all liens for mechanics, laboring or material men which shall have been claimed against the said premises, shall have been properly discharged of record.” It is further provided that the defendant shall “ so arrange the progress of his work ... as to allow the installation of the lighting and heating apparatus for said building at the proper times, with the least possible expense to the said O’Brien and the contractors for that work.” Then follow provisions to the effect that upon Peck’s failure to carry on the work energetically, O’Brien may go on and complete the contract at Peck’s expense, paying him at the end whatever balance may be due him. There are other provisions, but they seem to have no bearing on the question before us. . It will be seen that this is not upon its face a contract to erect and complete a building, as was the case in Morrill & Whiton Construction Co. v. Boston, 186 Mass. 217. It relates only to three kinds of work, namely, “ excavating, foundation and carpentering work.” As to them it agrees to do all the work and furnish all the materials including tools, etc., necessary to do the work. The work is to be done in conformity with certain plans and specifications. To these therefore must we look for further particulars. The plans not being before us, we are confined to the specifications. The first heading is “Mason Work.” Under that heading appear the following subdivisions: “ Loam,” which provides for the removal of the loam: “ Excavating,” which provides for digging “for all footings, walls, piers, inside drains, chimneys and columns, excavating to hard pan in all cases,” and also for digging the cellar: “ Footing,” which provides for laying footings “ for foundation wall, piers to piazzas, chimneys and iron columns,” the footings to be of concrete cement, “ and all to be carefully bedded and levelled for superstructure ” : “ Brickwork,” which provides for building chimneys, fireplaces, etc. Then follow several other subdivisions, which it is unnecessary to repeat in detail. It is sufficient to say that they give detailed directions as to thimbles and ash doors “ for fire flues as to a [55] ventilating register in the kitchen chimney, and as to chimney caps; as to granite steps both at the front and at the rear entrance, and as to the concrete cellar floor. Then comes a general direction to do all cutting in masonry required to assist other mechanics. The last subdivision is “Lathing and Plastering,” which contains detailed directions as to that work. So much as to the mason work. The next general heading is “ Carpenter Work,” under which are nearly fifty subdivisions, covering in all twelve pages. We need not recite these in detail. It is sufficient to say that, numerous as they are, no one of them has any reference whatever to lathing and plastering. Then follow more general headings, among which are “ Gas Piping ” and “ Painting.” The whole arrangement and framework of the specifications shows that the lathing and plastering were regarded as a part of the mason work and not as a part of the carpenter work. It is certain-that it is not listed as a part of the latter work. Nor is it a part.of the excavating or foundation work. Looking only at the specifications, there is as much reason to say that furnishing the chimney caps, or the granite doorsteps is a part of the defendant’s contract as to say that lathing and plastering is. It is urged, however, by the plaintiff, that the provision in the contract that the sixth payment should be made when the plastering is completed shows that that was a part of the defendant’s work. That position is untenable. The only purpose of the clause is to state the condition of the building when the payment shall be made, like the provision that the last payment shall be made “ after the entire completion of said building.” Upon an inspection of the contract, interpreted by the aid of the specifications, it plainly appears that lathing and plastering was not a part of the defendant’s written contract. It follows that the fourth ruling should have been given. The judge instructed the jury that “either the defendant originally, according to the fair intent of the contract and of the specifications, was bound to do the lathing and plastering, or if under the contract he was not strictly bound to do it, he is now bound because of the construction that both he and the plaintiff put upon that contract; in other words, that he did go ahead and do the plastering and lathing and that he paid for it out of [56] his $21,333, the contract price, so that the construction which they put upon it is the one to govern, and that he was bound to do the lathing and plastering.” The written contract being plain upon its face, the conduct of the parties was not admissible to contradict it, and the jury should have been so instructed. Menage v. Rosenthal, 175 Mass. 358, and cases cited. See Strong v. Carver Cotton Gin Co. 197 Mass. 53. If the contention of the plaintiff had been that the written contract had been subsequently modified so as to put upon the defendant the work of lathing and plastering, then the fact that the defendant did that work without making any claim for it as an “extra,” if such was the fact, might have been evidence in support of that contention. But even then it would have been a question of fact and not of law. In no event could the ruling have been made that because the defendant had done the lathing and plastering and paid for it out of the contract price it followed as matter of law that he was bound to do it as a part of the contract. The ruling given was erroneous. It becomes unnecessary to consider the other exceptions. Whether the plaintiff can have any remedy in equity by way of a reformation of the contract is not before us. Exceptions sustained.