Monahan v. William W. Babcock Co. ( 1911 )

Hammond, J.

The acceptance of the draft was conditional and the condition was that the plaster payment should be due. Did that payment ever become due ? By the contract between the builder and the defendant it was to be due “ when said building shall be plastered and skimmed and all windows in and blinds hung.”

All that the builder ever did as to the windows was to make the openings and put in the general frames without the sashes or glass. The plaintiff contended and introduced evidence, in support of the contention that windows were “in” when the holes were made and the general frames were inserted. But there was some conflict in the evidence. The defendant did not seem to rely upon the fact that the blinds were not hung, because awnings were to be used and blinds in such case would not be needed, but insisted that the part of the contract which related to the windows had not been performed.

The judge before whom the case was tried without a jury found as a fact that the specified contract had not been complied with, and found generally for the defendant; and the case is before us upon the plaintiffs exceptions to those findings.

The house to be constructed was situated in Brookline, and, we understand, was to be a dwelling house. It is unnecessary to recite the evidence in detail. It is sufficient to say that, whatever may be the meaning of the word “ window ” in certain connections, the evidence warranted a finding that the phrase “ all windows in,” when taken in connection with the phrase “ blinds hung,” and all being a part of a clause in the contract for the erection and completion of a dwelling house, meant windows fitted with sashes and glass ready for use as completed windows.

Exceptions overruled.