James Elgar, Inc. v. Newhall

Crosby, J. This is an action to recover a balance of $4,025 for the furnishing of all materials and labor used in the construction of an apartment house, in accordance with certain drawings and specifications which are a part of the written contract. The declaration also contains a count for damages because of delay and additional expense alleged to have been incurred by the defendant. -No question of pleadings is raised. The case was heard by a judge of the Superior Court on an auditor’s report and on oral testimony and exhibits introduced at the trial. All of the testimony before that court is not reported. The specifications provide that the building should be completed by October 1, 1915. The cost for the entire work was $35,000, subject to additions and deductions provided for in the contract, and such sum was to be paid only upon certificates of the architect (Article 9). It also was provided (in Article 10) that no certificate given nor payment made except the final certificate or final payment should be conclusive evidence of the performance of the contract. The auditor and the judge found that no final certificate had been issued by the architect; for that reason the defendant contends that the action cannot be maintained. The judge found for the plaintiff and the case is before us on his refusal to make certain rulings of law and findings of fact requested by the defendant. He ruled that the plaintiff could not recover upon the contract as originally made for the reason that he never obtained a final certificate of the architect as provided in articles 9 and 10. He found, however, that this provision of the contract was waived, and accordingly ruled that the inability of the plaintiff to procure the final certificate was not a bar to recovery. The ruling was [377] correct. Bowen v. Kimbell, 203 Mass. 364. Handy v. Bliss, 204 Mass. 513. Gilman & Son, Inc. v. Turner Tanning Machinery Co. 232 Mass. 573, 575. In view of the finding so made the defendant’s first, second and third requests were rightly refused. The fourth and fifth requests relate to the duty of the plaintiff under the contract to furnish certain mahogany trimming, samples of which were delivered to the defendant. There was a finding that the mahogany so furnished was not in accordance with the samples, but it was also found that the defects therein were remedied to the satisfaction of the defendant; in view of the latter finding the fourth request could not properly have been made. The judge stated that he adopted the fifth in the sense that the burden was on the plaintiff to show that he substantially completed his contract; the manner in which this request was dealt with was correct and the exception must be overruled. It was found that it did not appear that the delay in the completion of the contract was due to any failure on the plaintiff’s part to figure the size and “determination” of material from the plans and specifications; accordingly the sixth request was properly refused. The defendant also presented certain requests entitled “Requests for Findings of Fact.” The trial judge was not required to make findings of fact at the request of either party. Some of these requests were in fact requests for rulings of law and as such were so considered by the court. The first related to the finding by the auditor in favor of the plaintiff of substantial damages because of delay on the part of other contractors, which retarded the progress of the work of the plaintiff. While the specifications which are deemed a part of the contract provide that the building should be ready for occupation by October 1, 1915, it is also stipulated in Article 7 in substance that if the contractor should be delayed in the prosecution or completion of the work by the act, neglect or default of the owner, architect, or of any other contractor employed by the owner on the work, the time fixed for the completion should be extended for a period equivalent to the time lost by reason of such cause; and no such allowance should be made unless a claim was made to the architect within forty-eight hours of the occurrence of the delay. Article 8 provides in substance that the owner agrees to provide all labor [378] and materials essential to the conduct of the work not included in the contract of the plaintiff, in such manner as not to delay its progress, and in the event of failure so to do, thereby causing loss to the contractor, agrees to reimburse the latter for such loss. The judge found "on the auditor’s report and on all the evidence that the provisions of Article 7, relating to presenting to the architect" claims for an extension of the time and that he «hall determine and fix such extension, were waived by the parties; and also, that the defendant did not provide the labor and materials essential to the conduct of the plaintiff’s work in such manner as not to delay its progress, and that the consequent loss to the plaintiff amounted to $2,500. The requests entitled “Requests for Findings of Fact” are considered by us so far as they present questions of law. The first is in fact a request for a ruling of law, and in view of the findings of fact was rightly refused. The second, although a request for a finding of fact, was adopted by the court. The third was properly refused, as all the evidence on the question of the waiver of the requirement that a certificate of the architect should be furnished, is not before us. The fourth and fifth were requests for rulings of law and were made by the judge. As no error of law appears in the manner in which the requests were dealt with, the entry must be Exceptions overruled.