Bourisk v. Amalfitano

• Decision Date: 02 November 1977
• Citation: 379 A.2d 149
• Parties: John J. BOURISK, Sr., et al. v. Michael AMALFITANO.
• Court: Maine Supreme Court

Page 149

379 A.2d 149

John J. BOURISK, Sr., et al. v. Michael AMALFITANO.

Supreme Judicial Court of Maine.

Nov. 2, 1977.

Isaacson & Isaacson by Robert S. Hark, Lewiston, for appellants.

Berman, Berman & Simmons, P. A. by Gary Goldberg, Jack H. Simmons, Lewiston, for appellee.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY, and GODFREY, JJ.

WERNICK, Justice.

On March 5, 1973 defendant Michael Amalfitano and a corporation, Select-A-Home, Inc., executed a written document in which it was stated that Select-A-Home would construct an apartment building for defendant and defendant would pay the sum of $104,804.00 for the construction work

"so long as . . . (it) begins within ninety (90) days from the date hereof."

Also included in the writing were other pertinent provisions as follows:

"3. Amalfitano shall pay to the said Select the sum of $5000 in cash if the said Select does not build the above mentioned apartments as indicated above.

"4. If Select does construct the said apartments for the price mentioned above ($104,804.00), the covenant concerning the $5000 payment shall be null and void."

Select-A-Home did not commence construction within the 90 day period. On June 25, 1973 (approximately three weeks after expiration of said 90 day period) Select-A-Home made an assignment to the plaintiffs herein John J. Bourisk, Sr., and the corporation JBL Enterprises, Inc. of

"all of its right, title, and interest in and to the proceeds emanating from a certain Agreement, dated March 5, 1973, between it and one Michael Amalfitano, . . . relating to the construction of an eight-unit apartment, . . . ."

In August, 1974, plaintiff Bourisk instituted the present civil action in the District Court, Division of Southern Androscoggin, claiming that defendant Amalfitano owed him $5,000.00 under the agreement defendant had made with Select-A-Home, Inc. In October, 1974, the case was removed to the Superior Court (Androscoggin County), and on March 1, 1976 JBL Enterprises, Inc. was added as a party plaintiff.

The pleadings having been completed and the parties having filed several affidavits, defendant filed a motion asking that summary judgment be granted in his favor. On March 26, 1976 the Justice presiding in the Superior Court granted the motion for summary judgment and ordered entry of summary judgment in favor of the defendant. The presiding Justice so ruled because he considered the purported agreement on which plaintiff was relying to be unenforceable as a binding contract. Plaintiffs have appealed from the judgment entered in defendant's favor. We sustain the appeal.

Before us, defendant has sought to amplify the "unenforceable" rationale of the presiding Justice with the argument that the written document on which plaintiff has sued, while giving the illusion of being contractual in nature, is in reality not at all a legally binding contract. In support of this contention defendant makes the point that under the writing of March 5, 1973 he purportedly becomes liable to pay $5,000.00 to Select-A-Home for nothing i.e., merely by virtue of Select-A-Home's failing to commence construction within 90 days.

We find the argument unpersuasive.

The record amply indicates ambiguity as to the intention of the parties who executed the March 5, 1973 writing. One aspect of this ambiguity is that the parties may have conceived the March 5, 1973 document as supplementing a more comprehensive undertaking which was already in process and remained to be completed. The affidavit of Robert L. Berube, General Manager of Select-A-Home, Inc., discloses that Berube became employed by Select-A-Home at a time when Select-A-Home was "just about completing the first set of apartments for Amalfitano." Berube's affidavit also refers to a "second set of apartments" being built. It is thus suggested that defendant and Select-A-Home were parties to an undertaking involving two sets of apartments to be constructed for defendant by Select-A-Home.

In the affidavits of defendant Berube and Roger Robitaille, a former employee of Select-A-Home, mention is made of the "Heritage Knoll Apartments", or the "Heritage Knoll Project." The affidavit of Berube, in particular, gives indication that the "Heritage Knoll Project" was to consist of the construction of two apartment houses.

The affidavit of defendant speaks of a civil action brought by defendant against Select-A-Home, involving violations of contracts signed on June 15, 1973 and January 5, 1973. This subject is also adverted to in the affidavit of Robitaille which states:

"at the time Select-A-Home, Inc. shut down, work was not completed on two houses which are the subject of suits by the said Michael Amalfitano against the said Select-A-Home, Inc."

Robitaille's affidavit adds that

"after July 17, 1973 the said Select-A-Home, Inc. did not have any presentability to complete said other contracts."

All of these...