Ordway v. City of Newburyport

Carroll, J. In August, 1910, the plaintiff was awarded the contract for heating, by the hot air system, and ventilating a school house in the city 'of Newburyport. The following September a contract was made with one Morrison for the erection of the building, under which he was to furnish material and labor and do all the work except “heating, plumbing and painting.” In November the system of heating was changed from hot air to steam. The plans for the building were filed as required by It. L. c. 104, § 22, sometime before February 4, 1911, and on that day a State inspector of public buildings wrote to the architect in charge, disapproving certain parts of the plans. The certificate mentioned in the statute never was issued. The contract between the plaintiff and the defendant, by which the plaintiff was to furnish all material and labor for the installation and completion of the heating and ventilating of the building, was executed May 25, 1911, bearing date of March 15,-1911, on which date Morrison was proceeding with the work and the school house “was up somewhat above the first floor.” The building of the vent and heat ducts was a part of Morrison’s contract. The ducts constructed by him, while apparently suitable for a system of heating by furnace, were not suitable in connection with a steam heating system. The auditor found that Morrison was requested to build ducts proper for a steam heating system, and refused. The plaintiff contracted with the Walworth-English-Flett Company to perform the work required to be done by him, with certain exceptions. All this work was completed in substantial compliance with the agreement, and it was found that the system for heating and ventilating furnished by the plaintiff conformed to all the rules of the district police; that the system was capable of furnishing a uniform heat of the degree called for by the specifications, and that the difficulty in ventilation was due solely to the insufficiency and defective construction of the ducts built by [308] Morrison. There was a finding for the plaintiff and the defendant excepted. • The statute (R. L. c. 104, § 22,) prohibits the erection of a “building which is designed to be used, in whole or in part, as a public building, public or private institution, school house . . . until a copy of the plans thereof has been deposited with the inspector of factories and public buildings ... by the person causing its erection, or by the architect thereof. . . . The certificate of the inspector, indorsed with the approval of the chief of the district police, shall be conclusive evidence of a compliance with the provisions of this chapter. ...” The statute requires the owner or architect to file the plans, and the penalty for the violation of the statute is placed upon the owner, lessee or occupant. R. L. c. 104, § 55. A contractor engaged in the erection of a building is not required by this statute to file the plans; that is the duty of the owner or architect, and his failure to comply with the statute does not deprive the contractor of his rights under the contract. The, certificate mentioned in the statute is not a condition precedent to recovering by one who supplies material and labor for such a structure. The fact that the inspector had disapproved the plans submitted for the heating of t|le building — and that this fact was known to the plaintiff — did not deprive him of his right to recover if the work required by the plans and specifications was fully performed. It has been found that there was no failure on the part of the plaintiff to comply with all the terms of the undertaking. The defect was in the work done by the general contractor, who, in building the school house, carried out the original plan and constructed the ducts, as designed, for heating by a hot air system. Burke v. Dunbar, 128 Mass. 499. Sherman v. Buffington, 228 Mass. 139. The fact that the defendant is a municipal corporation does not, so far as this statute is concerned, prevent the plaintiff from recovering; nor does the fact that the system was designed and laid out by an engineer of the Wahvorth-English-FIett Company, the subcontractor, who was not in the defendant’s employ, disclose any fraud or deprive the plaintiff of his right to recover. Exceptions overruled.