JOHN A. GAFFEY v. UNITED SHOE MACHINERY COMPANY.

Morton, J. This is an action of contract to recover damages for the breach by the defendant of a written contract between it and the plaintiff according to which as the plaintiff contends he was to excavate rock from and remove a ledge on the defendant's premises in Beverly, crush the rock to certain specified sizes, and deliver the crushed rock as provided in the contract. The breach complained of was the defendant's action in refusing to allow the plaintiff to go on with the contract, he being ready and willing to do so. There was a verdict for the plaintiff and the case is here on the defendant's exceptions.

The first question relates to the construction of the contract. The defendant contends that according to the true construction of the contract the plaintiff was only to excavate and crush so much of the ledge as should be needed in the construction of new buildings and that when the buildings were completed it had a right to terminate the contract as it did. It also contends that the changes of grade ordered by the defendant's engineer came within the terms of the contract and did not constitute a breach of it. The plaintiff contends, on the other hand, that the contract is for the removal of the entire ledge, and not merely for so much as would have to be removed to furnish the crushed stone required for the construction of certain buildings. He also contends that the change of grade ordered by the defendant's engineer was not warranted by the contract.

It is plain we think that the construction contended for by the plaintiff, and which was the one adopted by the presiding judge, [Note p50-1] is the correct one. The contract begins by reciting, "That whereas the owner desires to secure the removal of a certain ledge . . . situated upon its premises at Beverly . . ., and whereas the contractor desires to undertake and carry out such work of removal . . .," and then proceeds "Now, therefore,

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. . . One. The contractor undertakes and agrees, subject to the provisions hereof and to the directions of the engineer in charge, to excavate and remove the ledge . . ." etc. The reference here is to the ledge and its removal as a whole and there are corresponding references in other provisions of the contract. Thus in article "Five" it is provided that "The owner shall furnish at convenient central points about the ledge . . . the necessary power," etc. In article "Six" it is provided that "The contractor shall thoroughly wash and cleanse the ledge before the same is blasted or excavated," etc., and that "The owner is thoroughly to strip the earth and soil from the ledge as rapidly as is required," etc. In article "One" it is provided that the "excavation and removal [referring evidently to the excavation and removal of the entire ledge] shall be to grade thirteen (13) or such other grade as may be specifically designated by the said engineer," and in article "Ten" provision is made for "changing the grade to which the ledge or any portion thereof shall be levelled." In article "Fourteen" it is further provided that, "The contractor shall use the chips and loose stones not crushed in filling up hollows in the ledge caused by the work of excavation, to the end that upon completion of the work the ledge shall be substantially at the grade or grades designated." All of these various provisions contemplate, we think, the removal of the entire ledge and not of such portion as may be required to furnish the crushed stone for buildings in the process of construction.

The only reference to buildings in process of construction in the entire contract is in article "Ten," and the reference there is simply for the purpose of providing that if work upon the buildings is suspended by strikes the engineer may order the prosecution of work under the contract to be suspended also. There is nowhere in the contract any provision that the ledge shall be removed only so far as may be necessary to furnish material for the construction of the buildings which the defendant was erecting, and there is no provision that upon completion of such buildings the contract shall or may be terminated. The auditor found that the main purpose of the defendant in having the ledge excavated was to obtain material for new buildings, and that no clause was inserted in the contract limiting the amount to be excavated because the defendant supposed that approximately

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the whole ledge would be required to supply the stone needed for the buildings. But he also found that the defendant was desirous to have the ledge removed and the portion of its premises occupied by it brought down to a level grade suitable to be grassed over or used for additional buildings or railroad tracks and that that was one of its purposes in having the ledge excavated and removed. There was therefore nothing in the circumstances under which the contract was entered into which required or warranted a different construction from that given to the contract by the presiding judge.

The contract provided in article "One," as already observed, "that the excavation and removal shall be to grade thirteen (13) or such other grade as may be specifically designated by the said engineer"; and it further provided in article "Ten" that "The engineer in charge may at any time during the progress of the work give written notice to the contractor, as hereinbefore provided, changing the grade to which the ledge or any portion thereof shall be levelled, and the grade so designated shall be in substitution of the grade thirteen (13) mentioned in this instrument." The defendant, assuming to act under these provisions in the contract, gave notice to the plaintiff on April 2, 1907, that thereafter the grades would be eighteen and twenty-three instead of thirteen, and on the plaintiff's refusal to acquiesce in the change as warranted by the contract virtually put a stop to work under the contract, and prevented the plaintiff from performing the contract. The auditor found that the effect of the change from grade thirteen to grades eighteen and twenty-three was that only a small amount would be excavated from the top of the ledge and that the change was made by direction of an officer of the defendant corporation for the purpose of terminating the plaintiff's work under the contract. At the trial the defendant's engineer testified on cross-examination, amongst other things, that "he did not know of any purpose to which the tops of the ledges levelled off to grade twenty-three and grade eighteen could be put," and that his object in changing the grade was to stop the plaintiff from further working. The presiding judge instructed the jury that "The engineer under the terms of the contract . . . was authorized to make any change of grade incidental to the purpose of carrying out the provisions of the

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contract, — that is, for the purpose of taking away the ledge,— but he had no authority ... to change the grade to an impracticable grade for the purpose, and simply for the purpose, of terminating the contract." We think that these instructions were correct. The power to change the grade did not include the power to change it so as to abrogate the contract, but was intended to give the defendant authority to make such reasonable changes during the progress of the work as would render the removal of the ledge when completed more satisfactory to it. So construed the provision is a reasonable one. Construed as the defendant contends it should be it would be altogether unreasonable, and cannot be presumed to have been within the contemplation of the parties.

The plaintiff made a sub-contract for a stone crusher with an engine and an engineer to run it, boiler, cars and other equipment required to crush the stone into the sizes called for by his contract with the defendant, and, subject to the defendant's objection and exception, was allowed to put in, as bearing on the question of damages the price which he was required to pay for what was thus furnished.

The plaintiff was entitled to recover as damages, if he prevailed, the difference, if any, between what it would have cost him to complete the work according to the contract and the sum which he was to receive therefor, and the judge so instructed the jury in accordance with the defendant's request. Fox v. Harding, 7 Cush. 516. Smith v. Flanders, 129 Mass. 322. Magnolia Metal Co. v. Gale, 189 Mass. 124. The case of Smith v. Flanders, 129 Mass. 322, would seem to be decisive in favor of the admissibility of the evidence.

But we fail to see how the defendant could have been harmed even if the evidence was wrongly admitted. The measure of damages was, as already observed, the difference between the contract price and the cost of completing the work, and the jury were so instructed, and the instruction was repeated more than once. Whether in estimating the profits which the plaintiff would have made if he had been allowed to complete the contract the jury included as part of it the profits which the sub-contractor would be entitled to recover by way of damages from the plaintiff for breach of the sub-contract, or whether in estimating the

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profits they disregarded the sub-contract and estimated them as an entirety, was immaterial. The cost of completing the work and the profits or damages to which the plaintiff was entitled would be the same in either case. The damages were not and could not have been enhanced by anything that was said or done in regard to the sub-contract. If the admission of the sub-contract had any effect it would seem to have helped rather than to have harmed the defendant.

We see no error in the rulings and instructions or the refusals to rule and instruct of the presiding judge.

Exceptions overruled.

W. B. Farr, (N. B. Todd with him,) for the defendant.

E. A. Whitman & H. W. Barnum, for the plaintiff.