Baccari v. B. Perini & Sons, Inc.

• Decision Date: 30 January 1936
• Citation: 293 Mass. 297,199 N.E. 912
• Parties: BACCARI v. B. PERINI & SONS, Inc., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 297

199 N.E. 912

BACCARI

v.B. PERINI & SONS, Inc., et al.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 30, 1936.

Suit in equity brought to the superior court by Loreto Baccari against B. Perini & Sons, Incorporated, and others, wherein the named defendant filed a counterclaim. From a final decree for complainant on his claim and allowing the counterclaim, the named defendant appeals.

Affirmed.Appeal from Superior Court, Essex County; Williams, Judge.

L. Whittemore, of Framingham, for appellant.

J. J. Gaffney, of Boston, for appellee.

CROSBY, Justice.

This is a suit in equity whereby the plaintiff seeks to have applied to the satisfaction of his claim security which was furnished in a written contract between the Commonwealth of Massachusetts and B. Perini & Sons, Inc., hereinafter called the defendant. The defendant in its answer denies the allegations of the bill and in its amended answer sets forth a counterclaim. The case was referred to a master who heard the parties and their witnesses, and filed a report. The defendant filed certain objections to the report. An interlocutory decree was entered confirming the report, except that portion of it which recited testimony to which the defendant had objected. A final decree was entered for the plaintiff for the full amount of his claim less the amount of the counterclaim which was allowed. The case is before this court upon appeal by the defendant from the final decree. It does not appear that any appeal was taken from the interlocutory decree. G.L.(Ter.Ed.) c. 214, § 27, provides: ‘Interlocutory decrees not appealed from shall be open to revision upon appeals from final decrees, so far only as it appears to the full court that such final decrees are erroneously affected thereby.’ See Arwshan v. Meshaka, 288 Mass. 31, 192 N.E. 162.

The master made the following findings: The suit is brought to recover $1,804.99 with interest from February 7, 1933, as set out in an account marked ‘A’ annexed to the plaintiff's bill. There was a written contract between the plaintiff and the defendant which consisted of a written agreement made September 7, 1932, and it incorporated by reference and made a part of said contract, a contract between the Commonwealth of Massachusetts and the defendant. The contract was not changed subsequently to its execution. If required the plaintiff to set all the necessary edgestones in the construction of a section of a State Highway between Boston and Worcester. The plaintiff set all of the required edgestones provided for in the contract ‘under the direction of’ and to the satisfaction of the engineer in charge for the Commonwealth and also to the satisfaction of the defendant. The plaintiff covenanted in the contract to do all the digging, back-filling, tamping and any other work connected with the setting of the edgestones; and agreed to set all such edgestones in such manner that he would not cause any delay in the performance of the contract between the defendant and the Commonwealth, and to carry at all times full and adequate coverage by way of insurance on all liability to the public and employees, and to pay and discharge any and all claims arising from or growing out of the employment of labor. The defendant covenanted to provide all the edgestones, and to pay the plaintiff eight cents per linear foot of edgestone laid by the plaintiff. By agreement of the defendant the plaintiff is entitled to the items in his account annexed amounting to $1,216.19, unless it is found that by reason of his failure to obtain liability and compensation insurance he committed a wilful and substantial breach of the contract. The only items in dispute were those totaling $588.80 for loosening and removing macadam that had previously been laid by the defendant in order to set the edgestones according to the plan and line as set out in the contract of the defendant with the Commonwealth. The contract did not provide specifically whether or not the roadway or the edgestones were to be laid first or last in relation to each other.

The master further found that all the extra work in dispute between the plaintiff and the defendant was required by the action of the defendant in laying the macadam road before the plaintiff had a reasonable opportunity to set the edgestones, and that the extra work in issue was not made necessary by any delay on the part of the plaintiff; that the number of men and the hours worked by each, as charged for by the plaintiff in the account annexed, are the same as actually were used by the plaintiff in the extra work described, and that the prices paid to the workmen and charged to the defendant were fair and rasonable for such labor.

The following findings also appear: The plaintiff, shortly after the contract declared on was signed, attempted to get liability insurance covering the public and compensationinsurance covering his employees but was unable to do so. He went to the office of the defendant, in Framingham, and informed it of his inability to secure insurance. The defendant called an agent of an insurance company to the office and had a conference in which the plaintiff did not participate. No insurance was ever written covering the plaintiff as to loability or compensation, and the plaintiff started to work without the insurance called for by the contract. During the progress of the work three men were injured, two of them being employees of the plaintiff; the other man was the plaintiff's son. No claim for compensation was made by him. The plaintiff did not discharge them or pay their claims, and the insurance company of the defendant paid them compensation. Because of the failure of the plaintiff to carry compensation insurance, the defendant, as a result of the accident, was compelled to pay the sum of $420 as premium to its insurance company; this sum was not the amount of compensation paid by the defendant's insurance company to the injured employees, but was the premium representing the entire payroll of the plaintiff, and was based on the defendant's premium rate. The premium rate for compensation is based on experience; this means ‘the record of accidents which the assured has had while engaged in the kind of work covered by the insurance policy.’ The master states that because the plaintiff ‘did not have compensation coverage on the men working on the Framingham-Natick job it will reflect itself in the defendant's premium rate, for how long and over what period of time, I am unable to say as no evidence was offered on this question.’ He found that after the accident to the plaintiff's employees and after the defendant paid the premium of $420 to its insurance company the defendant allowed the plaintiff to continue laying edgestones until the completion of the contract; that the plaintiff in good faith substantially performed his contract, and there was no wilful breach on his part; that the defendant owes the plaintiff $1,216.19 made up of items in the account annexed to the plaintiff's bill, and also the sum of $588.80 for extra work caused by the defendant laying macadam over the surface of the roadway on which the edgestones were set, with interest from the date of the filing of the bill; that if the defendant did not waive its rights under the contract requiring the plaintiff to carry workmen's compensation insurance, then the defendant is entitled to a set-off of $420 which was the premium it had to pay its insurance company for the injuries received by the plaintiff's employees; that if the defendant did waive such rights, the defendant is entitled to a set-off of $163.29 which would be the premium...