Hooper v. Cuneo

Braley, J. The presiding judge having found that they honestly endeavored to perform their express contract, the [39] plaintiffs can recover on the third count on an account annexed for the value of the labor and materials less any deductions necessary to complete the work, but not in excess of the stipulated price. Burke v. Coyne, 188 Mass. 401, 404. And the defendant’s twenty-third request is amply covered by this general finding. The record is silent as to any defects, except that the defendant “found some fault with certain floors,” and introduced evidence tending to show damages “by failure to receive his house” within eight weeks after August 27, 1914, the time named for completion in the contract. The delay seems to have been prolonged, for it was not until February 12, 1915, that the supervising architect wrote to the plaintiffs requiring certain work to be done, “before the contract job was completed.” It appears that while the title was in the defendant’s name his wife was the “real owner” of the property, and, if the judge believed the evidence of the plaintiff Hooper and of the architect, the defendant, after examining the building, said that, “if his wife would accept he would be satisfied.” A subsequent interview between her and the architect followed, and upon conflicting evidence the judge further could find, that she directed the architect to write to the plaintiffs that the building was accepted, and that thereupon, having received the keys, she and her husband “moved into the premises shortly thereafter.” While the defendant undoubtedly could recoup damages for defects from incompleted work, and for any loss as provided in the contract which he suffered by the delay, yet he could waive not only full performance but also whatever loss had been sustained, and accept the building as and when it was left by the plaintiffs. Norcross Brothers Co. v. Vose, 199 Mass. 81. Buttrick Lumber Co. v. Collins, 202 Mass. 413, 419, 420. The questions of waiver and of acceptance were issues of fact. Wood v. Blanchard, 212 Mass. 53, 56. The judge on the evidence, that, after the expiration of the time limit for completion, the plaintiffs were permitted to continue work, and that after completion the defendant accepted it and took possession under conditions to which reference has been made, was warranted in finding independently of the architect’s certificate, that the “defendant unqualifiedly accepted the work done and materials furnished-by the plaintiffs as being a sufficient compliance with the terms [40] of said contract, and waived any failure on the part of the plaintiffs to fully perforin the contract in accordance with its terms.” Freeland v. Ritz, 154 Mass. 257. Metropolitan Coal Co. v. Boutell Transportation & Towing Co. 185 Mass. 391, 397. Boyden v. Hill, 198 Mass. 477. C. W. Hunt Co. v. Boston Elevated Railway, 199 Mass. 220, 230. The finding is not equivocal as the defendant contends, but covers any failure of compliance on which the defendant’s right of recoupment depends. Bryne v. Dorey, 221 Mass. 399, 405. It follows under the judge’s ruling denying the defendant’s requests in so far as "contrary to and at variance” with the findings, that the requests regarding the waiver of the right to recoup for delay were denied properly, and the requests concerning the effect of the architect’s certificate had ceased to be material or appropriate. McLauthlin v. Wilder, 138 Mass. 393, 397. Shattuck v. Eldredge, 173 Mass. 165. The requests relating to acceptance are more in the nature of requests for findings than for rulings of law. But, whatever their purport, the judge was not required to rule on part of the evidence or to adopt any of the defendant’s contentions as to its weight. Briggs v. DePeiffer, 214 Mass. 52. Baxter v. New York, New Haven, & Hartford Railroad, 214 Mass. 323. Raymond v. Baker, 216 Mass. 200. Seager v. Drayton, 217 Mass. 571. Jacobsen v. Simons, 222 Mass. 449. Nor is it error for a trial judge to refuse a ruling not applicable to the facts of the case as found by him on evidence warranting the findings, even if the ruling requested is a correct statement of legal principles. Doon v. Felton, 203 Mass. 267, 271. Coles v. Boston & Maine Railroad, 223 Mass. 408, 416, 417. See Clarke v. Second National Bank, 177 Mass. 257, 264, 265. The defendant having failed to show that he is aggrieved by any error of law, the exceptions must be overruled. So ordered.