Cashman v. Proctor

Sheldon, J. The plaintiffs’ second request was properly refused. The provision in the contract that the plant should be constructed “ to the acceptance ” of the plaintiffs, meant under the circumstances here existing only that the materials and the construction should be such that a reasonable man, in view of the specifications incorporated into the contract, ought to be satisfied with the completed work as conforming to the requirements of the contract and specifications. Lockwood Manuf. Co. v. Mason Regulator Co. 183 Mass. 25. Noyes v. Eastern Accident Association, 190 Mass. 171, 182. C. W. Hunt Co. v. Boston Elevated Railway, 199 Mass. 220. A reasonable man would not have refused to accept this work, if it complied with all the terms and stipulations of the contract and specifications, merely because its capacity was not sufficient to do all the work that he desired. Under the contentions made by the parties in this case, that was the actual effect of the modification of this request made by the judge. The third, fourth, fifth and sixth requests were given in substance, but subject to a modification similar to that already stated, i. e., that what the defendant was required to do was to “ put in just the mechanical appliances which he agreed to put in, and put them in mechanically correctly ”; and that “ if the defendant furnished a plant in accordance with the plans and specifications and it worked perfectly, mechanically, it [was] immaterial whether or not it was of sufficient capacity to do the work required of it by the plaintiffs.” This was correct. Brummett v. Nemo Heater Co. 177 Mass. 480. Morse, Williams & Co. v. Puffer, 182 Mass. 423. The agreement was not to furnish a plant which should be of sufficient capacity to do all the work that the plaintiffs might desire, but to furnish certain carefully described appliances and machinery, and that the plant constructed from them should work successfully and perfectly; which must mean only that the working should be successful and perfect when called upon to do the work of which such appliances and machinery ought to be capable. These words cannot be extended to include the successful and perfect accomplishment of work beyond the capacity of such a plant. To [276] the extent that we have stated, these words were treated as creating a warranty; and it is immaterial that this word was not used by the judge. Parker v. Springfield, 147 Mass. 391. The seventh request was given in substance with the modification already stated; and for the reasons mentioned above we are of opinion that the modification was correct. The eighth request is not now insisted upon. The ninth, tenth, eleventh and twelfth prayers no doubt state correct rules of law. Garfield & Proctor Coal Co. v. Pennsylvania Coal & Coke Co. 199 Mass. 22. That is, the matters spoken of in these requests were not conclusive against the plaintiffs as matter of law. It was their right to have this issue submitted to the jury. But this was done. In substance, accordingly, these requests were given. And we cannot say that this exception is open to the plaintiffs. The judge evidently considered that he had given these requests; for he said to the plaintiffs’ counsel at the end of his charge, that he had given substantially their requests numbered from two to twelve, with the modification which has been stated; and the plaintiff’s counsel, apparently consenting "to this, desired only to except to that modification and to another specific part of the charge, which has been already considered. For the same reason the plaintiffs’ contention before us in argument that the judge should have ruled in terms upon the question whether there was an express or implied warranty that the plant would do the work for which it was constructed, is not open upon these exceptions. Apart from the fact that this question was in substance submitted to the jury, if the plaintiffs desired more specific instructions upon it, they should have asked for them. Exceptions overruled.