Costonis v. Medford Housing Authority
Decision Date | 30 June 1961 |
Citation | 343 Mass. 108,176 N.E.2d 25 |
Parties | George COSTONIS v. MEDFORD HOUSING AUTHORITY. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert D. O'Leary, Boston (Abraham H. Kahalas, Boston, with him), for plaintiff.
John S. Ahern, Medford, for defendant.
Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.
In this action of tort or contract the plaintiff seeks to recover a balance of $1,687 under a painting contract made with the defendant (ten per cent of the contract price withheld), and the sum of $4,464 for additional work requested by the defendant.
There are three counts in the plaintiff's declaration: one in tort for deceit, the second for such balance and for the value of the additional work, and the third on an account annexed. The judge in the Superior Court found for the plaintiff in the sum of $6,701.50, which included interest.
We summarize the facts as favorably for the plaintiff as the judge could have found them on the evidence.
The defendant is a 'Housing Authority' created under G.L. c. 121, § 26K. Through its executive director, Gerald A. Palumbo, invitations for bids for exterior painting work on the 'Riverside Avenue Housing Development' were issued. The work was to consist of repainting surfaces. The specifications called for the contractor to 'Provide all labor, materials, equipment, and services necessary for and incidental to the preparation of the exterior surfaces of the thirty-one buildings and appurtenances thereto, constituting the Riverside Avenue Housing Development, the application by brush of one (1) primer and one (1) finish coat of prepared paint to the wooden surfaces, the application by brush of one (1) primer and one (1) finished coat of prepared paint to the metal surfaces; and the application by spray of one (1) primar coat of cement paint and one (1) finish coat of acuylic (solvent type) paint to the concrete foundation walls, steps and porches' (emphasis supplied). The section of the specifications entitled 'Materials' states: 'Paint, exterior, for concrete foundations, steps, porches, etc., shall be cement-water, powder paint, best grade, conforming to Federal Specification TT-P-21, dated 6/30/41, Type I, Class B, and shall be free of lime other than that contained in the Portland cement itself.'
The plaintiff submitted a bid in the sum of $16,873 which was accepted and a contract was executed between the plaintiff and the defendant under date of June 10, 1958. The plaintiff received a 'notice to proceed' dated July 23, 1958, from the defendant through its executive director, Palumbo. This notice contained the following statement: 'You are informed that Mr. Gerald A. Palumbo has been appointed Contracting Officer and that he is duly authorized to administer your Contract for and in the name of the Medford Housing Authority.' This notice indicates that copies thereof were sent to the Medford Housing Authority and the State Housing Board. On July 25, 1958, Palumbo wrote a letter to the plaintiff which read in part:
Palumbo 'told * * * [the plaintiff] to use Easy Mix and Silasheen as the materials for the foundation work under the Contract.' The brand names 'Easy Mix' and 'Silasheen' do not appear in the specifications. 'Easy Mix' could not be sprayed as was permitted by the terms of the contract and did not meet the requirements set out by the 'materials' section of the specifications. When the plaintiff made his objections to using 'Easy Mix' or 'Silasheen' known to Palumbo he was told 'to get started on the job, and take exception to the foundation work.' 'Palumbo stated that he would see about submitting the matter to the State Housing Board at a later date, and if he (the plaintiff) was right in his claim that he did not have to use Easy Mix a change order would be forthcoming and * * * [the plaintiff] would be compensated.' Palumbo directed him to use 'Easy Mix' on the foundations and granted him permission to use an additive with the 'Easy Mix' to obtain better adhesion to the previously painted surfaces. The plaintiff's estimation of the fair value of the additional work necessitated by the application of 'Easy Mix' to the foundations was $4,464.
The contract recites that
A letter was written by the director of the State Housing Board to the chairman of the defendant housing authority dated March 24, 1959, in which the following language appears:
At the close of the evidence the defendant presented nine requests for rulings which were denied for reasons given by the judge. The defendant excepted to the 'rulings and findings' made by the trial judge and to the admission of certain evidence.
The trial judge based his general finding for the plaintiff and his denials of the defendant's requests for rulings on his special findings that the written contract was modified orally by the defendant through its contracting officer, Palumbo, and that Palumbo had 'authority * * * by implication' so to modify the written contract. Therefore, a decision on the propriety of the trial judge's special findings will serve to answer the defendant's exceptions to the denial of its requests for rulings and to the general finding for the plaintiff. The rule to be applied is that 'The general and special findings of the judge in an action at law are to stand if warranted in law upon any possible view of the evidence.' Treasurer & Recr. Gen. v. Macdale Warehouse Co., 262 Mass. 588, 592, 160 N.E. 434, 436.
Zlotnick v. McNamara, 301 Mass. 224, 225-226, 16 N.E.2d 632, 633. Testimony that Palumbo directed the plaintiff to apply 'Easy Mix' to the foundation walls...
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