MAX FELDMAN vs. LUIGI DESANTIS.

PIERCE, J. The plaintiff seeks to recover damages in an action at law for an alleged breach of a written contract for the construction and erection of certain walls and a garage, in that the foundation and walls of the garage have buckled and crumpled, and that the materials and construction were of poor quality.

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The agreement annexed to the declaration, in substance, provided that the contractor, Luigi Desantis, for the sum of $3,000 would (1) furnish all labor and material and construct a retaining wall upon the rear of certain premises described in the agreement, upon the wall now standing, to run the entire length of the property in the rear; (2) construct a retaining wall on both sides of the described lots running from said rear retaining wall at a height on a level with the ground on which the house stood on said lots, said wall to be of stone and to be two feet in thickness; (3) construct a four car community garage, furnishing all labor and materials, therefor, according to plans and specifications attached to and made a part of the agreement; (4) construct a cement capping four inches in thickness on the top of front elevation of garages; (5) construct a concrete driveway from the outer edge of sidewalk of sufficient or regular width across the sidewalk on Morse Street so as to be acceptable to the inspector for the city of Boston; (6) construct a concrete platform immediately in front of entrance to garage. All the work was to be done to the "satisfaction of the City of Boston Inspector and to be commenced promptly."

All the material evidence is reported, and it warrants the finding of the following facts: The work contracted for was completed the last of April or the first of May, 1925. At that time the defendant had received $2,300 in payments on account of the work done. Forty-five days later the defendant called for the balance of the payments, $700, as being due under the provisions of the contract which in this regard read: "A fourth payment of five hundred dollars ($500.00) is to be made upon completion of the driveway and upon completion of all work agreed to be performed under this contract in accordance with the plans and specifications previously referred to herein and in a manner acceptable to the City of Boston and to the owner. The balance of the price, six hundred dollars ($600.00) shall be due and payable 45 days after date of fourth payment."

The demands were refused by the plaintiff because, as he alleged, the walls were cracked. Three weeks after the walls and roof were constructed the walls and garage had cracked

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"so badly in places that 'you could put your fingers in'"; and in September were observed by a city of Boston inspector to be bulged and cracked. This inspector "was the supervising inspector who covered the job and as such was assigned to look after the erection of the garages and the construction of the retaining walls" on the premises in question. He testified that the foundation was laid to a height of one or two feet when he came on the job and he assumed it was laid in "hard pan"; that he observed the ground near the wall which was two to four feet high was "hard pan"; that it looked like "hard pan" to him; that he was at the job from time to time, watched the progress of the construction, gave instructions for tying up the side walls to the retaining walls, saw the garages just before they were completed, the last time in April or May, 1925, was satisfied with the job and pronounced it complete; that immediately thereafter he filed his written report with the building department of the city of Boston to the effect "that the said job was passed by him and that the builder had complied with the law"; that he saw the "job" about September, observed that the side walls of the building were bulged and cracked and advised the owner to repair the side walls; that later these side walls cracked considerably more; that the cracks were perhaps caused by settling of the foundation due to the fact that the owner had not gone to "hard pan," or possibly to the vibration of frequent trains; that the finished floor was cracked and sunken and pitched to the rear instead of to the front, and was cracked because not properly tamped.

There was evidence to the effect that, after the defendant had excavated for the foundation about eleven feet, the plaintiff went into the pit, tested the ground with a pick, and said to the defendant, "all right, go ahead and put in the foundation"; that he helped the men working for the defendant to throw down in the pit the rocks and material for laying the foundation; that the inspector saw the ground when a foot or two of the foundation was laid and said he was satisfied with it, it "looked like 'hard pan'."

At the close of the evidence the defendant requested the judge to rule, (1) "In order for the plaintiff to maintain his

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action he must prove that the work outlined in the written agreement was not done to the satisfaction of the building inspector of the city of Boston." (2) "The plaintiff having failed to affirmatively prove that the building inspector of the city of Boston did not pass the work, he cannot prevail in this action." (3) "The allegations that the work was done in an unskilful and unworkmanlike manner and proof to support such allegations are incompetent and immaterial in contracts as in this case where performance is conditional upon approval of a third person." (4) "There being no allegation or proof of fraud in this case, the approval of the building inspector of the city of Boston was conclusive and binding upon the plaintiff as well as the defendant." (5) "Upon the evidence and the law the plaintiff cannot recover in this action." (6) "Written contract must be construed to intend that all work was to be done to the satisfaction of the building inspector and he only." These requests were refused, and the judge found for the plaintiff. The case is before this court on appeal from the order, "Report dismissed," of the Appellate Division of the Municipal Court of the City of Boston.

The words of the contract under seal, "All work to be done to the satisfaction of the City of Boston Inspector," do not in themselves inhibit an action at law by the owner to recover damages for the breach of that contract until he shall "prove that the work outlined in the written agreement was not done to the satisfaction of the building inspector of the city of Boston." Nor can such a condition be implied to restrain an action at law upon the contract by the owner from any facts which are inferable from the reported testimony; especially when consideration is given, as it must be, to the provision that the fourth payment "is to be made upon completion of the driveway and upon completion of all work agreed to be performed ... in accordance with the plans and specifications . . . and in a manner acceptable to the city of Boston and to the owner." The provision looks to the result, and, while it necessarily was to be passed upon in a reasonable way by the inspector for the time being of the city of Boston, that condition did not make the individual

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opinion of the inspector a condition precedent to the right of the owner to assert such rights growing out of the contract as he could prove in an action at law. The case is governed by Hawkins v. Graham, 149 Mass. 284, Lockwood Manuf. Co. v. Mason Regulator Co. 183 Mass. 25, 27, and Derby Desk Co. v. Conners Brothers Construction Co. 204 Mass. 461. It is plain the judge was not bound to rule that "the plaintiff cannot recover in this action." It results that the entry must be, order, "Report dismissed," affirmed.

So ordered.