Albre Marble & Tile Co. v. Goverman

• Decision Date: 22 January 1968
• Citation: 233 N.E.2d 533,353 Mass. 546
• Parties: ALBRE MARBLE & TILE COMPANY, Inc. v. Edward GOVERNMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 533

233 N.E.2d 533

353 Mass. 546

ALBRE MARBLE & TILE COMPANY, Inc. v. Edward GOVERNMAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 7, 1967.

Decided Jan. 22, 1968.

Lawrence H. Adler, Boston, for plaintiff.

Lewis L. Whitman, Boston (Samuel H. Cohen, Boston, with him), for United States Fidelity and Guaranty Co. Walter J. Gotovich, Town Counsel, for the Town of Norwood, also with him.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, SPIEGEL and REARDON, JJ.

REARDON, Justice.

The plaintiff brought its suit under G.L. c. 149, § 29, to collect the balance which it claims is due to it arising from a subcontract on the building of a school in Norwood. Recovery was sought for labor and materials under the provisions of the subcontract and by amendment in quantum meruit also. The suit was brought against Edward Governman, the general contractor; the United States Fidelity and Guaranty Company, the bonding company; and the town of Norwood. Here, only the liability of the bonding company is in issue. A master found that the plaintiff was entitled to certain damages and that the defendant Goverman was not entitled to any recovery on a counterclaim by him. An interlocutory decree confirmed the master's report after modifying it by striking the master's findings in favor of the plaintiff. A final decree was entered dismissing the bill and the counterclaim. The plaintiff appealed from the interlocutory and final decrees.

1. There is no report of the evidence heard by the master. Facts found by him are thus conclusive unless they are on their face mutually inconsistent or plainly wrong. Lawrence v. Board of Selectmen of Egremont, 350 Mass. 354, 357, 214 N.E.2d 893, and cases cited, Rule 90 of the Superior Court (1954). While the unduly lengthy and discursive master's report before us tends to confuse as much as to clarify, we are able to distill sufficient from its content to sort out the facts and apply the law to them to decide the case.

2. Goverman undertook by contract the construction of a school for the town of Norwood. The plaintiff upon its bid became the subcontractor under Goverman for certain tile installations. In the subcontract it bound itself to Goverman by the terms of plans, specifications and general conditions of the prime contract. Under § 10 of the specifications the plaintiff, prior to proceeding to install the tile, was under the following contract obligations: '(a) Examine surfaces to receive tile. (1) All surfaces to be dry, clean, free of oily or waxy films, or non-compatible matter, and be firm, level, and plumb. (2) Wall surfaces which vary more than 1/8 in 8 ft. from the required plane are not acceptable. Corners must be square, straight and plumb. (2) Report to the Architect in writing all such defects. Do not proceed until all satisfactory provisions have been made. (e) Starting of work will imply acceptance of surfaces to receive tile within the limits established in this specification section.' In addition to certain other prime contract provisions relating to the authority of the architect to make minor changes, his function as arbitrator was defined in the contract as follows: 'Article 2. The Architect shall in all cases determine the amount, quality, the acceptability and fitness of the several kinds of work and materials which are to be paid for hereunder and shall decide all questions which may arise as to the fulfillment of this contract on the part of the Contractor and their determination and decision, in case any question may arise, and shall be a condition precedent to the right of the Contractor to receive any payment hereunder. The plans, specifications, proposal, and any addenda shall form a part of this contract.' The tile work of the plaintiff did not meet the specifications, largely due to the defective surfaces over which the tile was laid. While this faulty performance was apparently concurred in by Governman, the architect took no part either in approving or disapproving the work performed, which represented a departure from the specifications. On these facts the judge ruled, when the motion to confirm the report was before him, as follows: 'I rule that under the provisions of Section 10(e) of the 'specifications' contained in the contract between the parties that * * * (the plaintiff) accepted the surfaces upon which it was to install tile and may not now rely on the irregularities now in these surfaces to explain its failure to perform its contract in a good and workmanlike manner. By proceeding to perform its work on irregular surfaces despite the mandate of paragraph 10(b) of the 'specifications' in the contract between the parties, the * * * (plaintiff) acted at its peril. The directions of the agents of the * * * (defendant) Goverman, who was the general contractor and not the architect, to proceed with the work * * * did not relieve * * * (the plaintiff) of its contractual obligations to install tiles in a good and workmanlike manner.' There was no error. The action of the judge was predicated on the theory that the prime contractor and the subcontractor could not modify the contract's specifications. This was a question of law upon which he was empowered to rule (Foot v. Bauman, 333 Mass. 214, 219, 129 N.E.2d 916; Fred C. McClean Heating Supplies, Inc....