Cashman v. City of Boston , 190 Mass. 215 ( 1906 )

Hammond, J.

The only question is whether the facts set out in the report would warrant a finding by the jury of a compliance by the plaintiff with, or a waiver by the defendant of, the sixth article or other provisions of the contract relating to “ claims for extras.”

The provisions in the contract relating to this matter are contained in the fourth and sixth articles of the contract. The fourth is as follows: “The contractor, if he sustain any injury or loss or extra cost, for which the city is responsible, shall, before the fifteenth day of the month following a month in which the same is sustained, deliver to the superintendent and the engineer an itemized bill of such injury or loss, with a full statement in writing of the cause thereof, and an itemized bill and vouchers for the extra cost, with the order, or a copy of the order, by authority of which the cost was incurred.” The sixth article provides that no sum shall be allowed for extra labor or extra materials “ in cases where the provisions of article four have not been complied with, unless the mayor shall, in writing, approve thereof.” There is ample evidence to warrant the conclusion that the engineer had waived this provision so far as he had. the power to do so. But the difficulty is that he had not the power. By the third article of the contract he had full authority to interpret the specifications, but he had no power to waive the terms of the contract as to “ claims for extras.”

The mayor was the only officer authorized to waive the noncompliance with the provisions of the fourth article, and he could do that only by an approval in writing. There are obvious reasons why claims for extra labor or material should be promptly and clearly presented by the contractor, and that the waiver of such a provision should not be left to any other than the chief executive officer of the city. Such provisions are intended to protect the public treasury, are easily complied with by the contractor, are reasonable in their nature and are to be enforced. The case is clearly to be distinguished from Sheridan v. Salem, 148 Mass. 196, upon which the plaintiff relies. In the present case the majority of the court are of opinion that there is no evidence of a waiver by the defendant acting through its city council or other general officers, nor by any officer having the power to waive.

Judgment for the defendant.