Duncan v. Cordley

Morton, J. This is an action upon a written contract to recover the balance alleged to be due for building two streets on land of the Crescent Land Company in Boston. The streets were to be built up to the level of Commonwealth Avenue, and when finished were to be ten feet wide at the top. The material was to be taken from the company’s land and the work was to be completed on or before July 20, 1904. There was a verdict for the plaintiff, and the case is here on exceptions by the defendants to the refusal of the presiding judge to rule that on all the evidence the plaintiff was not entitled to recover. The case was submitted to the jury under the instructions not otherwise objected to. The only question is whether the streets were completed according to the contract. The jury must have found that they were, and we do not see how it could have been ruled as matter of law that they were not. There was testimony tending to show that they were built up to the level of Commonwealth Avenue and finished ten feet at the top as required by the con 301 tract, but that afterwards, owing to the nature of the land on which it was built and perhaps to the action of the elements, one of them settled so that it was below the stipulated level. The defendant contends in effect that the plaintiff was bound to fill it up agaiu and to keep filling it up as often as it settled until it remained permanently at the level contracted for, and that, because he did not do so, he did not perform his contract and is not entitled to recover. But all that the contract required the plaintiff to do was to build the streets to the level of Commonwealth Avenue and finish them ten feet on top, and, when he had done that, he had performed all that the contract called for. If one of the streets afterwards settled owing to the nature of the land on which it was built, or the action of the elements, the plaintiff was not responsible therefor, and was not bound to fill the street up again. If the street had settled during the process of construction, the plaintiff would have had to keep filling it in until he brought it up to the required level. But, after it was once completed, as the jury have found that it was, his obligations under his contract were ended. Cases like Dermott v. Jones, 2 Wall. 1, relied on by the defendants, and Adams v. Nichols, 19 Pick. 275 are not applicable. Exceptions overruled.