Albano v. Jordan Marsh Co.
| Decision Date | 05 June 1968 |
| Citation | 354 Mass. 445,238 N.E.2d 52 |
| Parties | Michael W. ALBANO v. JORDAN MARSH COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles M. Ewing, Boston, for defendant.
Edward U. Lee, Boston, for plaintiff.
Before WILKINS, C.J., and WHITTEMORE, KIRK, SPIEGEL and REARDON, JJ.
Albano brought this bill under G.L. c. 231A, § 1, to determine his right to continue performance under a lease agreement with Jordan Marsh Company (Jordan). The decree declared that, under the terms of the agreement, time still remains for Albano to complete his performance. Jordan appeals. There is a statutory report of material facts; the evidence is reported. The standard of review is stated in Sulmonetti v. Hayes, 347 Mass. 390, 391, 198 N.E.2d 297.
Albano is engaged in the promotion and development of shopping centers. After a period of negotiation which began in 1959, he and Jordan, an operator of retail department stores, entered into an agreement titled 'Indenture of Lease' on April 28, 1964. This document, as later amended, consists of forty-five pages of the printed record. By its terms Albano was to construct a shopping center in Springfield to be known as the Springfield Mall Shopping Center; Jordan agreed to lease a certain four story building to be constructed at the center. Jordan reserved the right to terminate the agreement if Albano should fail to deliver the substantially completed building by February 1, 1968, or the associated automobile parking facilities and roadways within ninety days after Jordan occupied the building, unless Albano was delayed by 'unavoidable delays.' 1 Albano seeks to determine whether the facts now to be stated constitute unavoidable delay, and in consequence entitle him to an extension of time for the completion of the building. Under art. XXXV, § 2, Albano would be entitled to an extension of time which is equal to that period of time during which, because of unavoidable delay, he was prevented from performing.
One of the roadways required to be completed is the so called Outer Belt which was to be the northerly boundary of the shopping center. Prior to the execution of the lease agreement several meetings were held, attended by Albano and officers of Jordan and of Jordan's parent corporation, Allied Stores. Some of these meetings were also attended by the Governor and other State officials and the Mayor of Springfield and the city council. At these meetings Jordan made it clear that it would not locate in Springfield or accept the shopping center without the Outer Belt. The judge found that 'the existence of the Outer Belt was an essential ingredient of the contract between Albano and Jordan.' Jordan is the principal tenant in the proposed shopping center. Without Jordan's participation, construction of the shopping center would not have been undertaken.
To ensure the construction of the Outer Belt, Albano agreed with the city of Springfield on October 23, 1964, to make a contribution of $260,000 toward the cost. Prior to November 21, 1966, the city made takings of property by eminent domain to build the Outer Belt. On that date, two suits in equity were filed in the Superior Court to prevent the construction of the road. Interlocutory decrees sustaining demurrers to the bills and final decrees dismissing the bills have been affirmed by this court. Poremba v. City of Springfield, Mass.1968, 238 N.E.2d 43; Omartian v. Mayor of Springfield, Mass.1968, 238 N.E.2d 48. On November 30, 1964, Jordan insisted that it would 'not then go forward with * * * (its) lease' if the Outer Belt was not built. No work has been done on the Outer Belt. No bids have been sought; no contract has been awarded. Albano notified Jordan of the suits, as required by the agreement, and claimed that they constituted 'unavoidable delay.' The judge found that because of the delay caused by the suits, Albano was unable to meet the time schedules for the construction of the building, and ruled that he was...
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Albano v. Jordan Marsh Co.
...311 N.E.2d 568 (1974) (hereinafter Albano I), further appellate review denied, --- Mass. --- (1974). b See also Albano v. Jordan Marsh Co., 354 Mass. 445, 238 N.E.2d 52 (1968); ALBANO V. JORDAN MARSH CO., --- MASS. --- , 327 N.E.2D 739 (1975)C (hereinafter Albano The sole surviving count in......
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Albano v. Jordan Marsh Co.
...354 Mass. 432, 238 N.E.2d 43 (1968), Omartian v. Mayor of Springfield, 354 Mass. 439, 238 N.E.2d 48 (1968), Albano v. Jordan Marsh Co., 354 Mass. 445, 238 N.E.2d 52 (1968), and ALBANO V. JORDAN MARSH CO., --- MASS.APP. ---, 311 N.E.2D 568 (1974)A (further appellate review denied, --- Mass. ......
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Albano v. Jordan Marsh Co.
...In Albano's action against Jordan Marsh, the decree granting Albano further time to perform was also affirmed. Albano v. Jordan Marsh Co., 354 Mass. 445, 238 N.E.2d 52 (1968). On June 17, 1968, Albano wrote to Jordan Marsh asking whether Jordan Marsh would proceed 'on an equitable basis.' J......