This is an action of assumpsit brought to recover the sum of $1,000 as compensation for services rendered by the plaintiff to the defendants in preparing plans for the construction of a dam across the Shetucket River, at Scotland, in the State of Connecticut, and for other services connected therewith.
The declaration is in two counts. The first count alleges an express contract on the part of the defendant to pay the plaintiff the sum of $1,000, and the second count alleges an implied contract to pay for the plaintiff's services.
The defendants pleaded the general issue and claimed (1) that they were not liable for the plaintiff's services, and (2) that the plaintiff's services were not worth $1,000.
At the trial of the case in the Superior Court the jury returned a verdict for the plaintiff for $1,000, the amount claimed. The defendants filed a motion for a new trial upon the grounds that the verdict was against the evidence and that the damages were excessive, which motion was denied.
The defendants claim that the four exceptions, upon which they rely, present two questions for consideration: (1) was evidence admissible showing the custom of architects as to compensation for plans when the same were submitted on request for a special purpose? and (2) was oral testimony admissible to explain a letter of the defendant, Shaw, dated November 20, 1907?
The defendant, Sheldon, a hydraulic engineer, at the instance of the Uncas Power Company, prepared certain plans and specifications for a dam across the Shetucket River, at Scotland, Connecticut. Shaw, the other defendant, a contractor, entered into a contract for its construction.
Sheldon's plans were based on examination and soundings made by one of his employees, and Shaw's contract with the Uncas Power Company was based on such plans and the accompanying specifications. The dam, under the contract, was to be based on solid rock or other suitable foundation. To facilitate the construction of the dam the river was *Page 163 turned from its natural bed. After a part of the dam foundation had been laid it was discovered that the rock bottom only extended a part of the way across the river bed and that for the remaining distance the bottom was composed of heavy boulders lying in gravel, an unsuitable foundation for the dam.
It is undisputed that the dam was to be built subject to the approval of both the commissioner of dams for the State of Connecticut and the engineer of the Baltic Mill Company. How or in what manner the work became subject to such approval is not important to the present case and need not be discussed. After the discovery of the unsuitable bottom which a portion of the river bed furnished, the commissioner and engineer aforesaid refused to approve the construction of the dam in accordance with the plans of Mr. Sheldon, and the work came to a standstill.
In this emergency the defendants conferred and decided to invoke the assistance of the plaintiff to help them out of their difficulty and directed their superintendent, Oliver H. Briggs, to communicate with and invite him to come to Providence for consultation. In pursuance of this invitation Rice came to Providence, conferred with the defendants, the commissioner of dams for the State of Connecticut and the engineer of the Baltic Mill, subsequently visiting the site of the dam at Scotland. Rice also made an examination of the plans of Sheldon and pronounced them unsuited to the existing conditions, and at the request of the defendants prepared a sketch and subsequently an elaborate plan which was submitted to all of the parties before mentioned. Rice also had a number of consultations and some correspondence with the defendants in reference to the work and as to the manner in which the adaptation of the plans to the situation could best be demonstrated to the commissioner of dams and the engineer before mentioned. More than a year after the rendition of these services by the plaintiff he sent his bill for $1,000 to Mr. Sheldon, who transmitted the same to Mr. Shaw. *Page 164
The defendants' exceptions are four in number. The first three exceptions relate to the exclusion of testimony by the defendant, Shaw, in explanation of a certain letter written by him to the plaintiff under date of November 20, 1907. The fourth exception relates to the exclusion of testimony offered by the defendant for the purpose of showing the custom as to paying for plans not used.
The letter which forms the basis of the first three exceptions is as follows:
"PROVIDENCE, R.I., Nov. 20th, 1907. A.C. RICE, M.E., WORCESTER, MASS.
DEAR SIR: —
I think you better hold back with bill for work at Scotland for a time at least. I am going into a fight and just what can be effected later on is now hard to tell. I am in hopes, however, to make your work available at a later period.
Trusting you are well, and prospering during these hard times, I am,
Very Respectfully Yours, FREDERICK E. SHAW."
This letter was introduced by the plaintiff, and its introduction was immediately followed by testimony regarding the delay which had occurred in sending the bill. The plaintiff also testified as to conversations with the defendant, Shaw, in which he had been requested by him to hold back his bill until he made a settlement with the Uncas Power Company. All this sufficiently indicates that the introduction of the letter was for the purpose of accounting for the delay in the sending of the bill.
Mr. Shaw, after having the letter read to him, was asked this question: "Will you explain to whom that refers, sending the bill?" That question was ruled out and Shaw was further interrogated: "To whom did you refer in saying that you were going into a fight?" *Page 165
We think that the evidence as offered was properly excluded. The question as to what fight the defendant, Shaw, was going into was clearly not material. There is nothing in the letter which refers to "sending the bill" to anyone. The request in the letter is that the plaintiff hold back the bill for a time and such request, taken in connection with the undisputed testimony of the plaintiff as to conversations with Shaw, in which the latter asked him to hold back his bill for services until he could reach a settlement of his own claim against the Uncas Power Company, leaves no ambiguity or equivocation which could be properly explained by oral testimony, certainly the form of the question "Will you explain to whom that refers, sending the bill?" is not, when compared with the text of the letter, a proper question. There is no reference in the letter as to sending the bill to anyone in particular. In the transcript of testimony, which appears to contain all of the discussion between counsel and the court relating to the admission of evidence explanatory of this letter, we find nothing from which we can determine the materiality or propriety of the testimony which the defendants desired to offer on that point.
In the next place it is not important in view of the undisputed fact that Shaw had requested the plaintiff to hold back his bill until he had obtained a settlement with the Uncas Power Company, and Shaw's letter of December 4, 1908, written by him after he had received the plaintiff's bill through Sheldon, in which he discusses the amount of the bill without any attempt, either directly or indirectly to disclaim personal liability for its payment.
We think that the exclusion of the explanation was proper or another reason. It does not appear from the offer of the defendants what they intended to prove by way of explanation. The trial court had nothing from which it could determine the propriety of the testimony even assuming that some testimony of an explanatory character could have been properly admitted. Under such conditions the exception of the defendants becomes ineffective. Crowley v. Appleton, 148 Mass. 98; Honsucle v.Ruffin, 172 Mass. 420. *Page 166
The defendants offered testimony as to the custom of architects regarding compensation for plans which are not used. We think that such testimony was properly excluded in the present case. It is undoubtedly the fact that architects and engineers preparing plans in competition with others, each one relying upon the superiority of his work for its acceptance, would not be entitled to compensation if their plans and specifications were properly rejected. The present case, however, does not present that question. There is testimony that the plaintiff was not called upon to compete with others in furnishing plans from which one might be selected to the exclusion of others, but was called on in an emergency to devise some method by which the defendants might be extricated from an unfortunate situation. There seems to be no dispute that the plaintiff rendered the services which he was called upon to render and it does not appear that the plans which he furnished were unsuitable for the purpose for which they were designed. All the other questions in the case were questions of fact. The jury has found in favor of the plaintiff for the amount claimed and the trial court has refused to grant a new trial. We find no error in the rulings of the court.
The defendants' exceptions are overruled and the case is remitted to the Superior Court for judgment on the verdict.