Costonis v. Medford Housing Authority

Decision Date30 June 1961
Citation343 Mass. 108,176 N.E.2d 25
PartiesGeorge COSTONIS v. MEDFORD HOUSING AUTHORITY.
CourtUnited 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.

SPIEGEL, Justice.

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: 'I must state that I shall look to you as the Contractor; and I shall expect that you will assume all responsibilities inherent with that position to include any and all discussions that may arise in connection with the administration of the Contract. * * * Therefore, I shall expect to conduct all business with you directly.'

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 'No change in the work shall be undertaken, nor shall any claim for extra work be valid, unless such change in the work be done in pursuance of a written order of the Authority, approved by the [State Housing] Board, specifically stating the character and conditions of the change and the amount by which the Contract Price and/or Contract Time for completion is to be adjusted. * * * When determining the value of any change, either additive or subtractive, the contracting parties are restricted to the following method: The contracting parties shall negotiate and agree upon the equitable value of the change prior to issuance of the order and the order shall stipulate the corresponding lump-sum adjustment of the Contract Time.'

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: 'As you know, we held a lengthy conference in this office on February 12th at which representatives of your Authority were present, representatives of the painting contractor, and representatives of the State Housing Board, including Mr. Dobrowski, Assistant Attorney General assigned to our office. During this conference statements were made by both sides indicating to the representatives of the State Housing Board that there seemed to be a misinterpretation of the specifications on the part of the painting contractor and representatives of your Authority. As a result, work was done beyond what was called for in the contract. The three thousand dollar figure was arrived at because facts brought out at the hearing indicated that the painter spent an additional $2,300 for material that would not have been purchased if this additional work was not done. The painting contractor also stated that it took considerable more time to apply the type of material used than normally would have been spent had they used a spray gun, as originally intended.'

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.

'It is settled that ordinarily a written contract, before breach, may be varied by a subsequent oral agreement made on sufficient consideration. Such a subsequent oral agreement may enlarge the time of performance, or may vary any other term of the contract, or may discharge it altogether. This rule applies to both sealed instruments and simple contracts.' 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...

To continue reading

Request your trial
39 cases
  • Makino, U.S.A., Inc. v. Metlife Capital Credit Corp.
    • United States
    • Appeals Court of Massachusetts
    • March 30, 1988
    ...vested in Hughes, Makino might reasonably expect he could make ordinary commercial arrangements. See Costonis v. Medford Housing Authy., 343 Mass. 108, 113-115, 176 N.E.2d 25 (1961); Hudson v. Mass. Property Ins. Underwriting Assn., 386 Mass. 450, 457, 436 N.E.2d 155 (1982); Weisman v. Saet......
  • Certified Power Systems, Inc. v. Dominion Energy Brayton Point, LLC
    • United States
    • Massachusetts Superior Court
    • January 3, 2012
    ... ... [s]uperintendent shall have primary on-site authority and ... responsibility to manage the Work and to coordinate the ... contract, or may discharge it altogether." Costonis ... v. Medford Housing Auth., 343 Mass. 108, 113, 176 N.E.2d ... ...
  • Perez v. Boston Housing Authority
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 4, 1980
    ...substantive law of the Commonwealth the rules of contract, tort, and so forth. See G.L. c. 121B, § 13; Costonis v. Medford Hous. Auth., 343 Mass. 108, 113, 176 N.E.2d 25 (1961); Ryan v. Boston Hous. Auth., 322 Mass. 299, 300, 77 N.E.2d 399 (1948); Johnson-Foster Co. v. D'Amore Constr. Co., ......
  • Finance Commission of City of Boston v. McGrath
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 12, 1962
    ...authority, or any similar authority for other purposes, is a public body, analogous in various respects (see Costonis v. Medford Housing Authority, 343 Mass. ----, 176 N.E.2d 25 a; see also Ayer v. Commissioner of Administration, 340 Mass. 586, 592-595, 165 N.E.2d 885) to a municipal corpor......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT