Hayeck Bldg. & Realty Co. v. Turcotte

Decision Date11 May 1972
Citation282 N.E.2d 907,361 Mass. 785
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesHAYECK BUILDING & REALTY CO., Inc. v. Francis E. TURCOTTE et al.

Edward J. Barshak, Boston, for plaintiff.

John E. Keenan, Jr., for defendants.

Before CUTTER, SPIEGEL, REARDON, QUIRICO and HENNESSEY, JJ.

HENNESSEY, Justice.

This bill in equity was brought by Hayeck against Turcotte and his bonding company, Maryland Casualty Company, for breach of a construction subcontract. Turcotte filed an answer and a counterclaim for work, labor and materials furnished by him. Hayeck appeals from a final decree wherein the judge found for Turcotte in quantum meruit and awarded damages in the amount of $40,000. We have before us the judge's voluntary findings of facts and a transcript of the evidence.

The facts are here stated. Hayeck was awarded a contract by St. George Syrian Orthodox Church to construct a church, a hall and a classroom area. On May 9, 1968, Hayeck engaged Turcotte by written subcontract to do all the masonry work on the church and the hall. By a subsequent oral agreement, Turcotte agreed to do the masonry work in the classroom area. In July, 1968, Turcotte went on the job site with a load of block. At that time, the foundations were in but the electrical conduits had not yet been installed. Turcotte told Hayeck that he could not begin the masonry work until the electrical work was done.

About August 12, Turcotte went on the job site with plank and staging and, at that time, had a conversation with Hayeck concerning the use of buff colored mortar. Hayeck had selected buff colored brick and expressed some dissatisfaction with the use of gray mortar whereupon Turcotte built a sample wall using the buff colored mortar. Hayeck then agreed to the use of the buff colored mortar in both the church and the church hall. Between July 10, 1968, when the cement blocks were delivered to the job site, and the first week in August, Turcotte told Hayeck that he wanted to begin the work but that the electrical work had not been done nor had the buff colored mortar arrived. Nevertheless, Hayeck told Turcotte to begin the block work because some of the parishioners were anxious to have the construction started.

On August 12, 1968, Turcotte commenced the block work on the church hall. The cement block wall was completely erected before any brick work was commenced. The subcontract required Turcotte to use a device known as a dur-O-Wall and to tie the face masonry work to the backup work with approval galvanized ties. As the block wall was constructed, Turcotte installed the required dur-O-wall but did not install any of the galvanized ties. The subcontract further required Turcotte to parge 1 the inner face of the brick wall. Turcotte also failed to comply with the contract in this respect.

The judge warrantably found that during the construction of all of the masonry work, Hayeck and his foreman were on the site every day. The architect was also periodically on the job. At no time did Hayeck, his foreman, or the architect object to Turcotte's placing of the dur-O-wall or to his failure to install the galvanized ties and to parge the brick wall. Also, Hayeck never objected to erecting the entire block wall before beginning to erect the brick facing.

The subcontract required that upon completion of the exterior brick walls of the hall Turcotte wash them with a solution containing muriatic acid. However, it was brought to Hayeck's attention not to use muriatic acid on the type of brick and mortar erected and, consequently, he instructed Turcotte's foreman to inquire of the brick supplier as to the proper solution. As a result of his inquiries, Turcotte purchased a powder and washed a sample section of the wall. After inspection and approval by Hayeck, the powder was used on the entire wall. When the drying was completed, the exterior wall showed signs of streaking and discoloration.

Subsequently, Hayeck and Turcotte entered into an oral agreement for the masonry work on the classroom area. The brick and wall construction which had been used on the church hall was also to be used in the construction of the classroom area except that a different detergent was used to wash the walls. The masonry work on the classroom area was completed on September 30, 1968.

Turcotte did not begin the masonry work on the church until October 14, 1968, because the steel work had not been completed until October 10. The masonry work was stopped on October 18 because the limestone window casings which were to be used on the building had not arrived. Beginning at this time, there were several exchanges of letters and conferences between Hayeck and Turcotte, most of which dealt with the staining and streaking of the walls of the church hall. As a result of these communications, the walls were again washed by Turcotte during the latter part of November and the early part of December.

Beginning on September 24, 1968, Turncotte submitted to Hayeck invoices totaling $64,730. Except for a payment of $33,000, Hayeck refused to pay Turcotte until the latter corrected the appearance of the church hall. Turcotte, on the other hand, refused to go forward with any further work until he received payment. Finally, on December 12, 1968, Hayeck wrote Turcotte that he was terminating the subcontract and that Turcotte was in breach at that time.

On this appeal Hayeck argues that there was insufficient evidence to support the judge's findings and that the judge misapplied the law governing an award of damages based on quantum meruit where there has been a failure to comply with the requirements of a contract. We agree with Hayeck's contention that if Turcotte wilfully and in bad faith failed to comply with the specific terms of the subcontract, he would be precluded from recovering in quantum meruit. However, we conclude that the judge was warranted in finding that, in the circumstances here shown, Turcotte was not barred from recovery.

At the outset we observe that even where a transcript of the evidence is before us the '(f)indings made by a judge on oral testimony . . . are not to be reversed unless shown to be plainly wrong.' Barnum v. Fay, 320 Mass. 177, 180, 69 N.E.2d 470, 472, and cases cited.

1. The law in this Commonwealth with respect to building contracts is well settled. '(A) contractor cannot recover on the contract itself without showing complete and strict performance of all its terms, but . . . failing in such complete performance of the contract, he may recover on a quantum meruit, if he can prove both substantial performance of the contract and an endeavor on his part in good faith to perform fully, and the burden is upon him to prove both.' Andre v. Maguire, 305 Mass. 515, 516, 26 N.E.2d 347, 348, and cases cited. It is equally well established that '(a)n intentional departure from the terms of the contract without justification or excuse in matters other than those so trifling as to be properly regarded as falling within the rule of the minimis will bar all recovery for materials supplied and work performed.' Russo v. Charles I. Hosmer, Inc., 312 Mass. 231, 233, 44 N.E.2d 641, 643. Divito v. Uto, 253 Mass. 239, 242--243, 148 N.E. 456.

2. Hayeck argues that Turcotte's failure to parge the walls was an intentional and substantial breach of the subcontract and that the judge's findings to the...

To continue reading

Request your trial
18 cases
  • Metro. Life Ins. Co. v. Cotter
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 15 d5 Março d5 2013
    ...[984 N.E.2d 851]J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 796, 494 N.E.2d 374 (1986); Hayeck Bldg. & Realty Co. v. Turcotte, 361 Mass. 785, 789, 282 N.E.2d 907 (1972), citing Andre v. Maguire, 305 Mass. 515, 516, 26 N.E.2d 347 (1940). We have allowed claims for restitution in circ......
  • Jones v. Brockton Public Markets, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 31 d3 Dezembro d3 1975
    ...a frivolous appeal; nor is the granting of attorneys' fees appropriate on the facts of this case. Cf. Hayeck Bldg. & Realty Co. v. Turcotte, 361 Mass. 785, 793, 282 N.E.2d 907 (1972). Judgment 1 That injunction was subsequently vacated by this court because it was obtained from a single Sup......
  • In re Bay State York Co., Inc.
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • 23 d4 Dezembro d4 1993
    ...of an $11 million dollar subcontract before change orders (i.e., 1% of the total contract price). See Hayeck Bldg. & Realty Co., Inc. v. Turcotte, 361 Mass. 785, 789, 282 N.E.2d 907 (1972). See also D. Federico Co., Inc. v. New Bedford Redev. Auth., 723 F.2d 122, 127 (1st Cir.1983).4 Indeed......
  • Holyoke Mutual Insurance Co. v. Vibram USA, Inc.
    • United States
    • Superior Court of Massachusetts
    • 20 d1 Março d1 2017
    ...thereto. J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 796, 494 N.E.2d 374 (1986); Hayeck Bldg . & Realty Co. v. Turcotte, 361 Mass. 785, 789, 282 N.E.2d 907 (1972), citing v. Maguire, 305 Mass. 515, 516, 26 N.E.2d 347 (1940). We have allowed claims for restitution in circumstances in......
  • 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