Sherman v. Buffinton

Rugg, C. J. This is an action at law upon an account annexed. The case was heard by an auditor upon a stipulation that his findings of facts should be final. The auditor’s report shows that a special contract was made for doing certain masonry work at the cottage of the defendant for an entire price. The contract required the building of twenty-five concrete piers, concrete basement walls, and a chimney with a fireplace of a well known quality of brick, called West Barnstable brick. This contract subsequently was modified by the substitution of tapestry brick for West Barnstable brick in the fireplace. This was found by the auditor to be such a radical departure from the original contract as to amount to a revocation of it. . [141] . There is no error of law in this finding. It is warranted by the subsidiary facts set forth. The special contract having been revoked, the rights of the parties depend upon the implied obligation raised by law out of their relations. That obligation on the part of the plaintiff was to furnish appropriate material, so far as he furnished material, and to do his work according to the directions of the defendant or her agent in a workmanlike manner so far as possible under those directions. The obligation of the defendant was to pay for work thus performed and such material furnished what they fairly were worth. It has been found that in laying the tapestry brick and in build-’ ing the fireplace the plaintiff followed the personal directions of the defendant and that he used ordinary skill. The fireplace as finished was not a good fireplace and was not constructed in a “workmanlike manner.” This result, however, was not due to any fault of the plaintiff, but was due to failure of the defendant to furnish an adequate plan for laying the tapestry brick, to provide a schedule of numbers for the tapestry brick so that they might be laid in such juxtaposition that their colors would blend, to her want of expertness in giving directions as to their laying, and to her failure to furnish firebrick and a sufficient quantity of properly colored mortar. These findings demonstrate that in the finished work in this respect the plaintiff is in no wise responsible for defects, but that the defects followed as a direct consequence from the failures of the defendant in particulars where she assumed the responsibility. It was a part of the original contract that the plaintiff should build the basement walls of concrete. As there was no change in this particular made or consented to by the defendant, the plaintiff continued at all times bound to do that work in that way, in order to conform to the directions of the defendant. He did not do this work as thus required, but instead built the basement walls of artificial concrete, or cement blocks laid in lime mortar. A concrete wall such as he was required to build would have been impervious to water, but the wall in fact was not impervious to water. The reason for making this change was that the plaintiff experienced some difficulty in setting forms for building a concrete wall and he thought the cement blocks would be [142] satisfactory to the defendant. The plaintiff consulted about this with Bradford, a carpenter who in general in behalf of the. defendant was supervising 'the plaintiff’s work. But she never authorized nor ratified this change. The auditor found that it would cost $20 to make the wall built equal to the wall agreed upon and required. The only way to determine the deduction which the plaintiff ought to sustain by his failure to follow the defendant’s direction in this respect is to deduct $20 from the total fair valué of the materials furnished and labor performed by him, because there was no evidence whereby the auditor could apply separate items for labor and materials to the walls or piers or fireplace and chimney. That was done by the Superior Court judge. Judgment affirmed.