Barton v. Morin

WAIT, J. The plaintiff sues in contract for damages arising out of the failure of the defendant to perform fully his contract to build a house upon her land according to the terms and specifications of their written contract. The Judge, who tried the case without a jury, found that in certain respects the contract had not been complied with and awarded damages to the plaintiff. There was evidence that, when the house was ready for occupation, the plaintiff moved into it, and, after ten days' residence, paid to the defendant the full balance claimed by him to be due under the contract. She and an agent for her had inspected the structure as the work progressed. At the time of final payment she insisted that the defendant sign the following statement written on the receipted bill: 'This house is complete with the exception of concrete wall to be finished outside as soon as weather permits; that all windows and doors shall be made to fit right. And that all wood in house that is full of checks or cracks shall be replaced on or before May 30, 1930, and to take care of plaster on basement if it falls off.' The defendant so signed on receiving the payment. Some of the defects for which claim in damages was made were then plainly to be seen. Others were not then apparent on inspection. There was dispute whether the defects noted in the memorandum on the bill had been made good before the trial. The Judge refused to grant the following request for ruling: 'As a matter of law the plaintiff, by a payment of the contract price after the completion of work which she had personally inspected, must be deemed to have waived any obvious defects therein.' The defendant excepted, and by his bill of exceptions raises the single issue whether there was error in the refusal.