Contract, Construction, Performance and breach, Building contract. Practice, Civil, Ordering verdict. Waiver.
The plan for a stable contemplated the keeping of horses on the third or stall room floor and the storage of carriages on the second floor immediately beneath it. A contract in writing for the building of the stable contained carefully stated specifications, as to the materials for and the manner of laying the stall room floor, which were intended by the owner to result in making that floor water-tight, and it was provided that the asphalt of the floor, laid in the manner required, was "to be guaranteed and kept in repair for two years," but the contract and specifications contained no provision that the floor should be water-tight. Held, that the construction of the contract and specifications was a question of law for the court, and that the contractor could not be held to guarantee that the mode of construction required of him would produce a water-tight floor.
In an action by the owner of a stable, constructed by the defendant under a contract in writing with the plaintiff and paid for in full by the plaintiff, for alleged improper performance of the contract, the jury in answer to special questions found that the driving of nails by the defendant through the asphalt covering of the stall room floor of the stable was a negligent and improper way of complying with the specifications of the contract and caused a leak which damaged property of the plaintiff to an amount named. The judge ordered a verdict for the plaintiff, and reported the case for determination by this court with a stipulation that, if the ordering of the verdict was wrong, judgment was to be entered for the defendant. It was assumed by this court that there was evidence warranting these special findings; but it appeared that no specific manner of fastening the stall room floor was provided for in the specifications, that the defendant had agreed to perform his work to the satisfaction of the plaintiff's architect and that the payments were to be made upon certificates of the architect. There was evidence on which the jury could have found that the method of doing the work by driving the nails through the asphalt had been approved by the architect and that on his approval the work had been accepted by the plaintiff, so that any objection on this ground had been waived by him. This issue was not submitted to the jury and they did not pass upon it in any of their findings. Held, that the special findings of the jury, which did not cover the whole case, were not sufficient to warrant the ordering of the verdict for the plaintiff, and that under the terms of the report judgment must be entered for the defendant.
SHELDON, J.
The question whether the defendant was required to make the third floor water-tight, depending entirely upon the construction of the language of the contract and specifications, was one of law for the court and ought not to have been left to the jury. Globe Works v. Wright, 106 Mass. 207, 216. Goldstein v. D'Arcy, 201 Mass. 312, 317. No doubt, if the jury had answered the question correctly, this would have been harmless error. Bouvé v. Cottle, 143 Mass. 310, 315. But they did not do so. The contract and specifications stated carefully and particularly just what the defendant was required to do, and the details of the manner in which it was to do this. It was not bound to go further and bring about a result which it had not agreed to accomplish. Evidently the plaintiff had expected and intended to obtain a water-tight floor. But he selected himself the exact means and mode of construction upon which he relied for the accomplishment of his purpose, and stipulated that the defendant should follow precisely the course thus marked out for it. The defendant could not be held to guarantee that this mode of construction would produce a water-tight floor, or to go beyond what it had agreed to do for this end. Burke v. Dunbar, 128 Mass. 499.
The stipulation that the floor was "to be guaranteed and kept in repair for two years" does not import an agreement to keep it water-tight. This could not mean more than a guaranty that the work and materials which the defendant was to supply should remain in good order and condition for the specified time. Certainly it could not imply an agreement that the floor should continue to possess a quality which there was no agreement that it should have.
So far as the ordering of a verdict rested upon this ground, it cannot be sustained. On the contrary the judge should have ruled as requested by the defendant that it was not required that the floor should be water-tight.
But the defendant had agreed to execute all its work "in the best and most substantial manner and to the satisfaction of the architect." The jury have found that the defendant's conduct in driving nails through the asphalt was a negligent and improper way of complying with the specifications. We assume that this finding was made upon competent evidence and under proper instructions. If so, it settled the question that the defendant, in this respect at least, had failed to carry out its agreement. Unless there was some other issue that also must be passed upon, it would follow that the verdict for the plaintiff rightly was ordered, and only the amount of damages would remain open.
But there was another issue in the case. There was evidence that the architect had put in as clerk of the works one Willard, whose duty, according to the testimony of the architect, it was, to the best of his ability, to look after the interests of the owner and to see that the work went on according to the plans and specifications. These was evidence that when the nails were driven into the asphalt to secure the board flooring, this method was approved by Willard, who said that he could see no other way of fastening the flooring. The manner in which the flooring should be fastened was not fixed by the specifications; but on the evidence another method might have been adopted which would not have made holes in the asphalt. The architect gave certificates for the earlier partial payments and for the final payment to be made under the contract, and the whole amount due thereunder was paid by the plaintiff to the defendant. There was evidence that the final certificate was given after some leaks had been discovered; and on all the evidence of the architect himself and that of Cross, especially on the re-examination of the latter witness, it could have been found that before the architect in December, 1906, gave the certificate for the final payment, he knew that the nails had been driven into the asphalt and that this had caused at least one leak. The architect to be sure denied this, but it was nevertheless a question for the jury.
This witness, who was called by the defendant, was the superintendent of a company that had charge of laying the asphalt floor.
Under these circumstances and in view of the fact that no specific manner of driving the nails was provided for in the specifications, the jury might have found that the doing of this work in the way in which it was done had been approved by the architect, that on his approval the work had been accepted by the plaintiff, and that any objection on this ground had been waived and was not open to the plaintiff. The instructions given by the judge upon this issue were very meagre, but we need not consider whether they were open to exception. However this may be, the findings of the jury do not cover the issue thus presented, nor does it appear to have been passed upon at all.
It follows that the findings made did not cover the whole case. They were not sufficient to warrant the ordering of a verdict for the plaintiff. Couilliard v. Eaton, 139 Mass. 105. Under the terms of the report, judgment must be entered for the defendant.
So ordered.