John Soley & Sons, Inc. v. Jones

It is a general rule, that parties cannot be relieved from their contracts fairly made with full knowledge of the facts, although they may have mistaken their rights or have failed to restrict sufficiently their liabilities. Hawkes v. Kehoe, 193 Mass. 419. The defendants knew that by its terms their contract with the transit commissioners could be cancelled and discharged, if the engineer gave a certificate that they were not making such progress in the execution of the work as to indicate that it would be completed within the period fixed for performance. It was with this knowledge that they entered into the agreement with the plaintiff as a subordinate contractor to perform a part of the work. The impossibility of the defendants’ performance of the plaintiff’s contract, if the contingency arose, could have been foreseen and provided for in the instrument. A provision that the promise should be dependent upon the continued existence of the principal contract would have been sufficient to protect the defendants, if the plaintiff was compelled to abandon the work, because the contract with the commissioners was terminated. New Haven & Northampton Co. v. Hayden, 107 Mass. 525, 531. It is the defendants’ contention, that, when construed in connection with the circumstances, such a condition appears by implication or is an unexpressed term of the agreement. Hebb v. Welsh, 185 Mass. 335, 336. The plaintiff’s contract contained a clause providing that the work should be performed subject to the directions and to the satisfaction of the commissioners or of their authorized engineer, and the plaintiff concedes that the amount and character of the work could be ascertained only by resort to the specifications of the main contract. If the principal contract in its entirety had been referred to by appropriate language it would have been incorporated, but it cannot be read *567into the agreement by implication, where only that part which is germane to the plaintiff’s performance may be implied, and the language is unambiguous. De Friest v. Bradley, 192 Mass. 346, 353. Lipsky v. Seller, 199 Mass. 310, 315. The auditor, whose finding is not questioned, reports that the plaintiff at the time of execution knew not only of the specifications under which its work must be done, but of the article of cancellation. It apparently acted upon this information when it ceased work upon having been informed that the right of termination had been exercised. The act of the commissioners and its decisive effect upon the plaintiff’s right to go forward under the contract having been known to each party, further notice from one to the other of their several rights or demands would have been a vain formality. Cumberland Glass Manuf. Co. v. Wheaton, ante, 425. It is urged that, the possible disability which would prevent performance by the defendants having been known to the plaintiff at the inception of the contract, it was mutually understood that the defendants did not intend to perform, and that the plaintiff had no expectation of performance, unless the principal contract remained in force. But while we can construe the contract in writing which the parties made, we cannot make a contract for them. It is only where an unanticipated event happens, which was not in the contemplation of the parties at the inception of. the contract and upon which the continued existence of the contract must depend, that upon the happening of the event the contract is dissolved and the promisor is relieved from further performance. Butterfield v. Byron, 153 Mass. 517. Hawkes v. Kehoe, 193 Mass. 419, 423. Vickery v. Ritchie, 202 Mass. 247, 251. Rowe v. Peabody, 207 Mass. 226. Sun Printing & Publishing Association v. Moore, 183 U. S. 642. Baily v. De Crespigny, L. R. 4 Q. B. 180, 185. If the plaintiff and the defendants contracted with knowledge of the clause of termination, the defendants of course knew that when the principal contract came to an end either with or without their fault further performance by the plaintiff would be impossible. Instead of providing for a contingency reasonably to be anticipated, the defendants gave an absolute promise to pay the contract price on the basis that there should be no interference with the work of construction if the plaintiff’s conduct was satisfactory to the *568commissioners as it appears to have been. Having made themselves responsible for the existence of the subject matter of the contract until without" fault on the plaintiff’s part it had been performed, they are not within the exception or principle of construction recognized and followed in Wells v. Calnan, 107 Mass. 514; Butterfield v. Byron, 153 Mass. 517 ; Young v. Chicopee, 186 Mass. 518; Angus v. Scully, 176 Mass. 357 ; and Hawkes v. Kehoe, 193 Mass. 419, where the occurrence which discharged the contract was of such a character that the parties were held not to have had it in contemplation at the making of the agreement. See Hebert v. Dewey, 191 Mass. 403, 411; Vickery v. Ritchie, 202 Mass. 247. The rulings on the question of liability upon which the measure of damages under the first count of the declaration must rest, to the effect that the causes for the termination of the principal contract were immaterial as the commissioners had reserved that right, and that there had been a breach, were in accordance with our construction of the rights of the parties. The contract not having been dissolved, the plaintiff was not remitted to compensation for the fair value of the work done with a reasonable profit for such work and also upon the work remaining to be performed, or restricted to a sum which would be proportionate to the contract price the defendants were to receive from the commissioners. But it was entitled to the benefit of the contract, after deducting from the contract price the reasonable cost of completing the work. Olds v. Mapes-Reeve Construction Co. 177 Mass. 41. Norcross Brothers Co. v. Vose, 199 Mass. 81. Gagnon v. Sperry Hutchinson Co. 206 Mass. 547. The rulings requested were rightly refused, and the instructions given were correct.

Exceptions overruled.