N. J. Magnan Co. v. Fuller , 222 Mass. 530 ( 1916 )

Rugg, C. J.

The N. J. Magnan Company, hereafter referred to as the contractor, made'a written agreement with Robert J. Fuller and four others, hereafter called the committee, “to supply the material and do the construction of a grand stand on Columbia Field in accordance with the plans and specifications drawn up and submitted by Engineer, J. E. Judson.” The grand stand was to be made of concrete.

1. After the contract had been partially performed, a concrete slab, which was an important part of the structure, broke when its supports were removed. Thereupon, the contractor refused to complete the contract in accordance with the original plans and specifications, but was ready and offered to finish the structure provided a new and suitable design and specifications for the slab were furnished. The contractor proffered evidence to show that its reason was that it had consulted engineers and had been advised that the original plans and specifications were unsuitable and improper, and that a grand stand erected in accordance therewith would not be safe. Testimony to support this engineering view was offered. The judge ruled in substance that the reason and the evidencéwere not an excuse for failure to complete the contract. This ruling was right. When one enters into a contract with a builder to erect a structure in accordance with plans and specifications, which are open to inspection, without express provision touching the subject, there is no implied warranty or agreement on the part of the owner, in the absence of circumstances which by necessary intendment are the equivalent of a warranty or agreement, that the work can be done according to the plans and specifications, or that, if so done, it will be safe. It is the duty of one who proposes to enter into a building contract to examine the contract, plans and specifications, and to determine whether it is possible to do the work before entering into the engagement, or to insist upon some stipulation covering that matter. If, without a special agreement upon that point, he makes a general contract without fraud or mutual mistake, he has bound himself to do the work. If it turns out that he has agreed to do something which is impossible or impracticable, he cannot for that reason alone refuse to go forward. Having made his contract, he must fulfil it or bear the consequences of a breach. Rowe v. Peabody, 207 Mass. 226, 234, and cases there collected. Winston v. Pittsfield, 221 Mass. 356. Thorn v. Mayor of London, 1 App. Cas. 120.

The contract in the case at bar is simple, direct and unequivocal. It contains no stipulation on the part of the committee that the grand stand could be completed or that it would be safe when completed. There are no circumstances revealed in the record which constitute an implied guarantee to this effect. The undertaking of the contractor is unqualified that he will complete the grand stand “in accordance with the plans and specifications.” The evidence offered and excluded constituted no excuse for failure to perform the contract.

2. As the damages in the action of the committee against the contractor were agreed, it is not necessary to consider the bearing of the excluded evidence in that connection.'

3. The letter from the treasurer of the committee to the contractor, as to the presence of an inspector upon the work, rightly was excluded. It was written before the contract was signed and hence must be presumed to have been a preliminary which was not embodied in the contract. Gaston v. Gordon, 208 Mass. 265, 269. Moreover, it does not appear to have any bearing on the issues.

4. The testimony as to the statement of Judson, the engineer of the committee, made after the breaking of the concrete slab “with reference to the work that had not been completed,” rightly was excluded both because no adequate offer of proof was made and because there was nothing to indicate that the statement was made by an agent of the committee acting within the scope of his authority. Admissions respecting past events commonly are not within the power of an agent. Hathaway v. Congregation Ohab Shalom, 216 Mass. 539, 544.

5. The letter from Judson to the committee as to the cause of the breaking of the slab was excluded rightly. It was simply an expression of opinion about a past event. It was not under oath. If the substance was material, he should have been called as a witness or his deposition taken.

6. There was no ground for exception in the temporary and provisional exclusion of the testimony as to conversation with the engineer over the telephone with regard to the removal of the forms, the judge saying, “I will give the matter a little further consideration, then you may renew your question later. I am not clear that I have ruled correctly on that matter.” This was not a definitive and final ruling. The matter was not again called to the attention of the judge. This was within the discretion of the judge as to the conduct of the trial. It stands on the same footing as evidence received de bene with the privilege to the objecting party of moving later that it be stricken out. Commonwealth v. Johnson, 199 Mass. 55, 59. Clarke v. Fall River, 219 Mass. 580, 586. The failure of the plaintiff to direct the attention of the judge to the point later commonly deprives the party offering such evidence of an exception. Besides, no offer of proof was made, and hence it does not appear that the plaintiff was harmed. Cook v. Enterprise Transportation Co. 197 Mass. 7, 10.

7. The admission of photographs, not as evidence but as “chalks,” for the purpose of illustrating to the jury the general condition, was within the discretion of the judge. Everson v. Casualty Co. of America, 208 Mass. 214, 219.

In each case let the entry be

Exceptions overruled.