Automated Housing Corp. v. First Equity Associates, Inc., 80-193

• Decision Date: 11 March 1981
• Docket Number: No. 80-193,80-193
• Citation: 121 N.H. 177,428 A.2d 886
• Parties: AUTOMATED HOUSING CORPORATION v. FIRST EQUITY ASSOCIATES, INC. et al. FIRST EQUITY ASSOCIATES, INC. et al. v. AUTOMATED HOUSING CORPORATION.
• Court: New Hampshire Supreme Court

Page 886

428 A.2d 886

121 N.H. 177

AUTOMATED HOUSING CORPORATION v. FIRST EQUITY ASSOCIATES, INC. et al.

FIRST EQUITY ASSOCIATES, INC. et al. v. AUTOMATED HOUSING CORPORATION.

No. 80-193.

Supreme Court of New Hampshire.

March 11, 1981.

Reiser & Rosenberg, Boston, Mass. (Murray P. Reiser, Boston, Mass., on the brief and orally), for plaintiff.

Winer, Lynch & Pillsbury, Nashua (S. Robert Winer, Nashua, on the brief and orally), for defendants.

KING, Justice.

In this contract action, the plaintiff, Automated Housing Corporation, sought to recover the unpaid balance on a construction contract plus the value of certain "extras" performed by the plaintiff during the course of its performance. The defendant, First Equity Associates, Inc., filed a companion action against the plaintiff for damages, alleging that the plaintiff had materially breached the contract by failing to complete the job. The cases were heard by a Master (Theodore Wadleigh, Esq.), who found that the plaintiff was entitled to recover the balance due on the contract plus the value of the "extras," less the cost of completing the work called for by the contract. The master's report was approved by Wyman, J. The defendant's objection to the master's report was overruled by Loughlin, C. J. The defendant's motion to set aside the verdict was denied by Randall, J., who reserved and transferred all questions of law relating to the denial of the motion to this court. We affirm.

Both parties were engaged in the business of residential construction. On September 21, 1970, First Equity and Automated Housing entered into a building contract relative to the construction of an apartment complex known as Brook Village West Garden Apartments on a site in Westborough, Massachusetts. First Equity was the owner, developer, and general contractor; Automated Housing was the prefabricator and the subcontractor. The contract stated that First Equity would pay $165,000 to Automated Housing to construct building shells on five apartment building foundations furnished by First Equity. The building components that made up the shells of these units consisted of the exterior bearing walls, interior bearing walls, interior non-bearing partitions, and the structural floor and roof panels. These components were prefabricated at Automated Housing's factory in Salem, New Hampshire, shipped by trucks to the building site, and assembled on the prepared foundations. Automated Housing hired subcontractors to assist it in constructing these shells. First Equity, as general contractor, hired other subcontractors such as masons, plumbers, carpenters and electricians to perform the construction of the buildings, and employed a supervisory foreman for the project.

Automated Housing began to perform the contract in September of 1970. On October 20, 1970, Automated Housing submitted a statement to First Equity outlining a schedule of payments, which set forth specific dollar amounts to be paid when certain portions of the work were completed on each building. The master found that this schedule of progress payments was agreed upon by the parties.

Through the entire job, First Equity held back payments from Automated Housing and did not pay according to the schedule of payments. The master determined that as of April 12, 1971, First Equity owed Automated Housing approximately $24,000 for work already performed under the contract and for "extras." Because First Equity refused to make timely payments, Automated Housing ceased work on or about April 12, 1971. At that time, the work of Automated Housing was substantially completed, the only work remaining being that which was to be done by two of its subcontractors. An agreement was then reached between First Equity and Automated Housing that the remaining work would be done by the two subcontractors hired by Automated Housing, and that they would be paid directly by First Equity.

In May, 1972, the plaintiff brought this action to recover the unpaid balance under the contract and the value of "extras." The master found that the plaintiff had substantially complied with its contract obligations and that the plaintiff was justified in stopping work because of the failure of the defendant to make payments according to...