Palefsky v. Connor , 270 Mass. 410 ( 1930 )

Crosby, J.

This is an action to recover damages for the alleged failure of the defendant to perform in accordance with its terms an oral contract entered into by the parties in January, 1925, respecting the plastering of an apartment house, in Lowell, erected and owned by the plaintiff. The declaration alleges that the agreement provided that the defendant' would furnish proper materials and would do the work in a good and workmanlike manner, and that for such labor and materials the plaintiff would pay the defendant $3,475. It is the contention of the defendant that the contract was illegal and unenforceable. He further contends that the plaintiff was guilty of negligence which contributed to cause the damage sustained. After the defendant had completed the work and received full payment under the contract, many of the ceilings became loose, separated from the laths, and fell. Some of them were replaced by the defendant.

The case was referred to an auditor who made the following findings: Under the terms of the contract the defendant agreed to furnish the labor and materials to “hard plaster” the building then in the process of erection, the material to be used to be of “U. S. Red Top Gypsum.” The work was started on February 1, 1925, and finished the seventh of the following March. The lathing of the entire building was done by a contractor other than the defendant. The plaintiff was the general contractor and all, or nearly all, of the construction was by workmen employed by him. The plastering in many of the rooms fell during the year 1926, and in other rooms was cracked, loose, bulging, separated from the laths and ready to fall. All of the ceilings were replaced either by the defendant, or by one Gallery, employed by the plaintiff, upon the same laths as originally spaced, and those ceilings were in good condition at the time of the hearings in April, 1928. The auditor found that the mixture for hard plaster should be two of sand to one of plaster; that the mixture applied by the defendant was three of sand and one of gypsum; that the latter was not a good mixture as it weakened the adhesive and cohesive qualities of the plaster and was the primary cause of the plaster becoming loose, bulging, separating from the laths and falling; that the spacing of the laths for hard plaster should be from one fourth to three eighths of an inch; that all the laths in this building were not so spaced but ran from one sixteenth to five eighths of an inch; that it was not a uniformly good job of lathing, and was a secondary or contributing cause of the plaster being loose, bulging, separating from the laths and falling down.

The auditor further found that the defendant and his foreman were present when nearly all the lathing was done; that where the laths were improperly spaced was obvious; that the defendant and his foreman complained to the plaintiff and to the lather; that the defendant did not stop work but followed the lather, doing the ordinary work of plastering and using ordinary force in applying the plaster when it was plain that where there was improper spacing of laths, more than ordinary force was required to obtain a key or clinch which would hold the plaster in place. The auditor found that the plans as originally drawn called for a flat roof but that a “pitch roof” was constructed. He also found that in certain respects the construction was in violation of the building ordinances of the city.

The defendant contends that specifications were not filed with the building inspector as required by § 13 of the city ordinances. It appeared that the inspector granted the plaintiff’s application for a permit to build in accordance with the application and plans filed with him. At the trial in the Superior Court the case was submitted to the jury upon the auditor’s report, together with other evidence.

If we assume, without deciding, that specifications were not filed with the inspector of buildings before the building was erected, as required by § 13 of the city ordinance, and that the construction was in violation of the same section, the plaintiff is not for those reasons precluded from recovery. The contract between the parties was not illegal. To perform it did not violate any provision of the ordinance. Ordway v. Newburyport, 230 Mass. 306, 308. It was not open to the defendant to show that the act of the inspector in granting the permit was wrong on the ground that the provisions of the ordinances had not been complied with. His conclusions in matters of fact within his jurisdiction are conclusive in the absence of bad faith. There is no finding that the plaintiff did not act in good faith. Ordway v. Newburyport, supra. Barry v. Capen, 151 Mass. 99. Fox v. Rogers, 171 Mass. 546. Morley v. Police Commissioner of Boston, 261 Mass. 269, 278. Cases holding that contracts which provide for the doing of prohibited or illegal acts cannot be enforced are not pertinent to the facts in the case at bar. See Eastern Expanded Metal Co. v. Webb Granite & Construction Co. 195 Mass. 356. Keown & McEvoy Inc. v. Verlin, 253 Mass. 374.

At the close of the evidence the defendant filed a motion for a directed verdict and also requested certain rulings. Both were denied. Upon the findings of the auditor and the evidence submitted at- the trial the jury found for the plaintiff.

It is not disputed that the contract provided for hard plaster to be placed on the wooden laths. The trial judge instructed the jury in substance that the defendant, having proceeded to carry out the contract with the laths laid as he found them, was under an obligation to do what the conditions required in order to perform the work in a good and workmanlike "manner; and that if the conditions required him to use a different mixture or to apply more force in putting the plaster on in order to get a proper clinch, it was his duty to furnish such plaster and to place it upon laths with sufficient force to make a good and workmanlike job. These instructions were correct. If the jury found that the laths were improperly placed because laid without sufficient spacing between them, and that the fall of the plaster was due to an improper mixture of sand and gypsum, or to the failure of the defendant to use sufficient force in putting on the plaster in view of the laths being placed so close together, they were warranted in finding that the work was not done in a good and workmanlike manner as called for by the contract. It follows that the defendant’s motion for a directed verdict was rightly denied.

The first request, that upon all the evidence the plaintiff could not recover, cannot be considered in view of Common Law Rule 44 of the Superior Court (1923). Patton v. DeViney, 259 Mass. 100, 102. Bray v. Hickman, 263 Mass. 409, 416. The defendant’s second, third and fourth requests, which in substance call for a ruling that the plaintiff could not recover on the ground that he failed to comply with or that he violated the city ordinances, were rightly denied for the reasons hereinbefore stated. The defendant’s fifth request, that, if the jury found upon all the evidence that the lathing was improper and such improper lathing contributed to the fall of the plaster, the plaintiff was not entitled to recover, could not properly have been given. As the action was in contract, the question for the jury was, in view of the character and condition of the laths and their insufficient spacing, whether the plastering was done in a workmanlike manner as called for by the contract. The defendant excepted to certain portions of the judge’s charge. These exceptions need not be considered in detail; an examination of the parts excepted to shows no harmful error.

Exceptions overruled.