
    O. P. Blomquist Company vs. Alfred B. White. Alfred B. White vs. O. P. Blomquist Company.
    Suffolk.
    December 7, 1925. —
    January 7, 1926.
    Present: Pugg, C.J., Braley, Pierce, Wait, & Sanderson, JJ.
    
      Contract, What constitutes, Performance and breach.
    At the trial of cross actions between a contractor and the owner of a building upon a contract for work to be done in the building, a controlling issue was, what was to be included in the contract and whether certain floors were to be stripped; and there was evidence that the owner submitted to the contractor in writing specifications, the last sentence in which was, “Also give estimate for stripping all floors and refmishing like new throughout the building with the exception of the operating rooms”; that oral negotiations followed in which various bids were submitted and finally the contractor wrote to the owner a letter stating that it was to confirm a “verbal quotation” to the owner’s agent “for the painting of building ... in accordance with specifications submitted to us, with” certain additions, and the owner replied confirming his agent’s “verbal acceptance” of the contractor’s “verbal quotation” to the agent. The judge refused'to rule as a matter of law that the contract was contained in the letters and specifications, and found that there were included in the contract some matters considered in the oral negotiations. Held, that the findings and rulings by the judge were proper.
    Cross actions of contract relating to a contract by the O. P. Blomquist Company to perform certain work upon a building of Alfred B. White at 472 Commonwealth Avenue in Boston. Writs in the Municipal Court of the City of Boston dated respectively May 21 and May 22, 1924.
    At the trial in the Municipal Court, it appeared that an agent of White submitted to O. P. Blomquist Company (hereinafter called the company) some specifications, which are referred to in the record as “Exhibit 1.” The last sentence therein read: “Also give estimate for stripping all floors and refinishing like new throughout the building with the exception of the operating rooms.”
    Other material evidence is described in the opinion. Upon the evidence, the judge found “that the first bid on the specifications in suit was submitted by the O. P. Blomquist Company on September 4, 1923, in the sum of $1,700 with an additional sum of $170 if the floors were to be stripped and refinished. I find that this bid was not accepted. I find that the second bid submitted by the O. P. Blomquist Company was submitted on September 20, 1923, in the sum of $1,600 with an allowance of $300 if the defendant White was to furnish the paper for the papering of certain rooms. I find that this bid was not accepted. I find that subsequent to September 20, Blomquist and White, through his agent Mr. Poulin, had some negotiations concerning the work. I find that as a result of these negotiations it was agreed that Blomquist should strip all the floors, and in addition to- the specifications paint all the plastered walls not previously specified, except the vestibule walls, which were to be cleaned, paint the radiators, and remove cloth in the front room on first floor 'and repair the plastering, panels and painting in the walls, and to clean the windows, for the sum of $2,000, which was accepted by Mr. Poulin verbally and confirmed by Mr. White by letter on October 19, 1923. I find that after Blomquist had received the sum of $1,700 under this contract, and after his attention had been called to inferior and unworkmanlike work, he abandoned his contract and refused to go on with his agreement.”
    Requests by the company and rulings by the judge thereon were as follows:
    “1. That the contract between the parties consists of the letter from Blomquist to-White dated October 18, 1923, the letter from White to Blomquist dated October 19, 1923, and the specifications marked ‘Exhibit 1.’” “Not granted; not the whole contract as found.”
    “2. That the contract between the parties is not ambiguous.” “Granted.”
    “3. That the paragraph in Exhibit 1 asking for estimate for stripping all floors and refinishing like new throughout the building, with the exception of the operating room, is not apart of the specifications.” “Not granted; applies only to part of the evidence.”
    “4. That Blomquist has performed all work called for by the contract, with the exception of the two basement rooms.” “Not granted.”
    “5. That Blomquist is excused from the nonperformance of the work in the two basement rooms by reason of the delay on the part of White.” “Not granted.”
    “6. That Blomquist is entitled to recover the contract price, less a fair deduction for the work in the two basement rooms.” “Not granted.”
    o The judge found for the defendant in the first action and for the plaintiff in the second action in the sum of $350, and reported the actions to the Appellate Division, who ordered the reports dismissed. The company appealed and in this court contended solely that the trial judge should have ruled that the contract between the parties consisted of the letters quoted in the opinion and the specifications, that it could not be “enlarged by oral evidence concerning previous or contemporaneous discussion,” and that the judge thus committed an error in determining what the contract was, which vitiated his finding in both cases, “because it is evident from the report that this matter of stripping the floors was a very important factor, both on the question as to performance by the contractor and damages to the owner.”
    The case was submitted on briefs.
    
      H. Bergson, for O. P. Blomquist Company.
    
      A. B. White, C. A. Barnes, & F.W. Fisher, for Alfred B. White.
   Bralet, J.

The plaintiff in the first action, contracted to perform certain work and to furnish the necessary materials for painting and refinishing the ceilings, floors, and walls of the interior of the defendant’s house. The declaration in the first case is on an account annexed, which after crediting partial payments, leaves a balance of $324 which the company claims it is entitled to recover. In the second case the plaintiff alleges that the company’s contract price was $2,000, and that part of the work was performed in an unskilful and improper manner, and that the company after notice refused to remedy the defective work, for which he claims damages.

It is contended by the company that the contract was in writing. The treasurer of the company, after negotiations with one Poulin, the agent of the plaintiff White, sent to White a letter stating, “This is to confirm our verbal quotation to Mr. Poulin of Two Thousand (2,000) Dollars for the painting of building ... in accordance with specifications submitted to us, with the following additions to same: To pgint all plastered walls not expressly specified except vestibule walls which are to be cleaned. The painting of the radiators is included in the above price. Also the removing of cloth in front room, 1st floor repairing the plaster in panels and painting same like the other walls. This, I believe, is in accordance with my conversation with Mr. Poulin.” To which White replied by letter “Your letter . . . confirming your verbal quotation of $2,000 to Mr. Poulin for painting the building . . . has been received, and this letter will confirm Mr. Poulin’s verbal acceptance of the same.”

The trial judge was warranted in finding on the evidence, which need not be recited, that the contract was not fully performed in some material particulars, and that, after receiving $1,700 of the contract price, which was sufficient to pay for what had been furnished and supplied, the company refused further performance, causing a loss to White of $350, the amount required to make good the defective work, which he was entitled to recover.

The first request, that the contract consisted of the letters and the specifications, was rightly denied; and the company’s remaining requests: that the paragraph asking for an estimate for stripping all floors and refinishing them like new throughout the building with the exception of the operating room, is not a part of the specifications; that all the work called for had been performed; that it was excused from doing the work in two rooms in the basement by reason of White’s delay; and that it is entitled to recover the contract price less a fair deduction for the work in the basement rooms, became immaterial because of the findings. Hayward v. Leonard, 7 Pick. 180. Burke v. Coyne, 188 Mass. 401, 404.

The order of the Appellate Division dismissing the report in each case is

Affirmed.  