DERBY DESK CO. v. CONNERS BROS. CONST. CO

Contract, Construction. Referee. Architect. Pleading, Civil, Answer. Practice, Civil, Stipulation of parties, Ordering verdict. Evidence, Extrinsic affecting writings.

A contract to furnish to a general contractor window frames, door frames and other things for a certain building contained the following provision: "It is understood and agreed by and between the parties hereto that the work included in this contract is to be done under the direction of the architects, and that their decision as to the true construction and meaning of the drawings and specifications shall be final. . . . No alterations shall be made in the work except upon written order of the architects; the amount to be paid by the general contractor, or allowed by the contractor, by virtue of such alterations, to be stated in said order. Should the general contractor and the contractor not agree as to the amount to be paid or allowed, the work shall go on under the order required above, and in case of failure to agree, the determination of said amount shall be left to the architects for decision." Held, that these provisions did not empower the architects to act as arbitrators in interpreting the meaning of the contract after an action had been brought upon it.

In an action of contract the defense of an award under an agreement of arbitration or of a decision by a referee must be pleaded, and if not set up in the answer it cannot be proved.

In an action upon a contract in writing to recover a balance alleged to be due for furnishing to a general contractor window frames, door frames and other things for a certain building, where the controversy between the parties relates to the question whether the plaintiff was obliged under the contract to provide certain iron window frames and to provide and erect certain iron door frames, if the parties file a stipulation stating that the plaintiff is entitled to the full amount claimed by him unless the defendant is to be allowed the expense of providing and setting the frames after the failure of the plaintiff to do so, this does not leave open to the defendant a subsequent contention that the action is barred by a decision of the architects of the building that the plaintiff was bound by the terms of the contract to provide the iron window and door frames.

In an action upon a contract in writing to recover a balance alleged to be due for furnishing to a general contractor window frames, door frames and other things for a certain building in accordance with certain specifications, where the only matter in dispute is whether the plaintiff became bound to furnish exterior iron frames for ten large windows and for two large doors, and the contract itself does not specify the kind of material to be used, so that resort must be had to the specifications, and where each party selects certain parts of the specifications on which he relies for an interpretation supporting his contention, but the specifications construed as a whole leave the matter in doubt, oral evidence is admissible to remove the ambiguity by defining the meaning of the terms employed in the contract, to ascertain whether the plaintiff was to provide both the wooden and iron frames or only the woodwork; and for this purpose evidence of the preliminary negotiations, the conduct of the parties and the correspondence and interviews between them or their respective agents after the contract was executed is competent.

In an action upon a contract in writing, where extrinsic evidence is admissible to ascertain the meaning of the ambiguous terms of the instrument sued upon, the question of the meaning of the contract is one of fact for the jury under proper instructions from the presiding judge, and the ordering of a verdict is erroneous.

BRALEY, J.

The certificate of the architects was properly excluded. In the adjustment of differences, as the work progressed, the decision of the architects as to the quantity and quality of the work within the true meaning of the drawings and specifications was to be final. But they were not empowered to act as arbitrators whose decision as to the interpretation of the contract, made nearly a year after the date of the writ, should be a condition precedent to the right of the plaintiff to bring suit. White v. Abbott, 188 Mass. 99. Norcross Brothers Co. v. Vose, 199 Mass. 81, 94, and cases cited. Bauer v. International Waste Co. 201 Mass. 197, 203.

The amended declaration is for the balance due under the contract, which is alleged to have been fully performed. The amended answer, while containing an itemized statement of deductions including the cost of furnishing and putting in place of the iron frames, with a claim in recoupment, does not plead an adjustment of the matters in issue by arbitration or decision of the architects. It is well settled that an award or settlement must be pleaded, or it is not admissible in bar of the suit. Parker v. Lowell, 11 Gray, 353, 358. Furthermore by the written stipulation of the parties filed in the case it was expressly agreed that the plaintiff was entitled to the full amount unless the defendant was allowed the expense of providing and setting the frames. It is not disputed that all the woodwork contracted for by the plaintiff has been provided, and in the present controversy the only questions are, whether the plaintiff became bound to furnish exterior iron frames for ten of the large windows, and for two of the large doors. The answer depends upon the interpretation which should be given to the words "window frames" and "door frames" found in the contract. The only expression separate from the specifications which seems to indicate the nature of the materials, appears after the clause relating to the stationary furniture, which the plaintiff also was to furnish, set and complete ready for use. If by implication there is ground for construing the words "all other woodwork" as referring to the preceding window and door frames and sash, because otherwise they appear to be meaningless, the defendant insists that the material of the items in dispute was to be of iron. The first paragraph of the contract not having expressly defined the kind of material to be used, resort must be had to the specifications. But as only one set of specifications and drawings had been prepared covering in detail the construction and completion of the building, the defendant, when making subordinate contracts, used by reference that part where the work to be done and materials to be furnished by the under contractor were described. The parties having agreed that the several specifications relating to the architectural iron, general ironwork, marble work and carpenter's work shown by the record, are the specifications material to the decision of the case, they are to be treated as those referred to in the plaintiff's contract, and considered as if annexed to the instrument. Bergin v. Williams, 138 Mass. 544. White v. McLaren, 151 Mass. 553. Norwood v. Lathrop, 178 Mass. 208. Lipsky v. Heller, 199 Mass. 310. If descriptions calling for exterior window and door frames of iron are there found under the titles "architectural iron," and "general ironwork," where it is said that this heading is intended to include "all cast and wrought ironwork not included under structural steel and architectural ironwork as herein specified, required to complete the building in accordance with the drawings and the complete specifications of which this is a part," we find under the title of "carpenter's work" these words, "this contractor shall furnish and set all the window frames," the materials of which for the portions not exposed to the weather "shall be thoroughly kiln dried, free from sap, shakes, large knots or any defects that would impair its durability," and "the exterior door frames on the first floor are to be of cast iron," but "all other door frames shall be of rebated pine plank." Ordinarily "carpenter's work" of itself does not cover the furnishing of iron door frames, and the architect, to whose evidence no exception was taken, testified, that while the expression, "the exterior door frames on the first floor are to be of cast iron," appears, yet the contractor for the woodwork would not be obliged to put them in, as the reference was only intended to indicate that these frames were not included. The defendant contends that by the plans of the building with the specifications the iron frames were an integral part of the doors and windows, because neither doors nor sash could be put in place without the iron framework to support them. The plaintiff, if inclined to concede in argument that by the architect's testimony the specifications and drawings include all the woodwork in connection with "the exterior iron window and door frames," the "window frames and sashes," and "inside finish," and that, upon an examination of the plans and reading of the specifications, it is possible to ascertain exactly what work was to be done, not only does not make the concession, but omits any reference to the iron door frames. But while the parties have selected particular parts upon which each relies for an interpretation supporting its contention, the specifications are to be construed as a whole, and not by some of the language which may be found in different portions. When the whole contract is thus reviewed with reference to what the plaintiff bound itself to perform, it is at once apparent from the phraseology used that the differences between the parties cannot be settled or harmonized on the face of the terms they have used. The specifications under different titles, either with or without qualifying words, speak of both kinds of material and construction. To remove the ambiguity and ascertain whether the plaintiff was required to provide both, or only the woodwork, the preliminary negotiations, the conduct of the parties, and the correspondence and interviews between them or their respective agents after the contract was executed were relevant and should have been admitted, not to vary or enlarge the agreement, but to define the meaning of the terms they employed. The ruling that extrinsic evidence could not be received to explain its terms or to aid in its true interpretation was erroneous. Shaw v. Mitchell, 2 Met. 65. Mooney v. Howard Ins. Co., 138 Mass. 375. Smith v. Vose Sons Piano Co. 194 Mass. 193, 200. Garfield Proctor Coal Co. v. Pennsylvania Coal Coke Co. 199 Mass. 22. Gordon v. Knott, 199 Mass. 173. Sleeper v. Nicholson, 201 Mass. 110. Jennings v. Puffer, 203 Mass. 534. District of Columbia v. Gallaher, 124 U.S. 505. O'Brien v. Miller, 168 U.S. 287.

If the report had stated, that by agreement of parties the architect's testimony, which was admissible only on the ground that an ambiguity existed in applying the contract to the subject matter, should be accepted and treated as a final explanation as to the meaning of the plans and specifications, the first ruling, that the contract was not ambiguous although inconsistent, with the second ruling fixing the amount due, would have become immaterial. It then would have been open for us to have determined whether the second ruling was correct, and to have ordered judgment for the plaintiff for either the amount found due by the trial judge, or the larger sum, if by the interpretation of the contract as explained by the architect the iron window and door frames were extraneous. But the parties not having so stipulated, and the plaintiff having excepted to the ruling which improperly excluded extrinsic evidence, the second ruling directing a verdict was wrong. It was for the jury under appropriate instructions to decide upon the measure of the defendant's liability. Smith v. Faulkner, 12 Gray, 251, 256. Smith v. Vose Sons Piano Co. 194 Mass. 193.

It is unnecessary to discuss further or in detail the various and numerous offers of proof, as the ruling excluding oral evidence was general, and apparently they were not considered or dealt with specifically. Offers of proof moreover are not evidence until introduced, and supported by testimony, and at the second trial some of them may not be established while others may become irrelevant.

The questions asked and admitted in cross-examination, to which the plaintiff excepted, were within the discretion of the presiding judge. Jennings v. Rooney, 183 Mass. 577.

The verdict must be set aside and a new trial granted.

So ordered.