Carilli Const. Co. v. John Basile & Co.

• Decision Date: 28 February 1945
• Parties: CARILLI CONST. CO. v. JOHN BASILE & CO., Inc., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 726

59 N.E.2d 706

CARILLI CONST. CO.

v.JOHN BASILE & CO., Inc., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1945.

Suit by Carilli Construction Company against John Basile & Company, incorporated, and others for a receivership, collection of debts, payment of creditors, an acconting, and the division of the remaining assets between plaintiff and the named defendant as required by joint venture agreement, wherein defendants filed counterclaims. From the decree, both plaintiff and the named defendant appeal.

Decree reversed, and case remanded with directions.Appeals from Superior Court, Suffolk County; Morton, Judge.

Before FIELD, C. J., and QUA, DOLAN, RONAN, and WILKINS, JJ.

A. M. MacNeil, of Boston, for plaintiff.

E. J. Ziegler, of Boston, for defendants.

WILKINS, Justice.

The plaintiff and the defendant John Basile & Company, Inc. (hereinafter called the defendant) were associated in a joint venture doing construction work under a written agreement dated June 15, 1942, which was modified by a written agreement dated May 14, 1943, looking to a winding up of their association. The prayers of this bill in equity, in which numerous creditors were originally named as defendants, were for a receivership, the collection of debts, the payment of creditors, an accounting, and the division of the remaining assets fifty-two per cent to the plaintiff and forty-eight per cent to the defendant, as required by the agreement. The controversy in this court chiefly concerns the accounting. The case was heard by a judge who made a report of ‘the material facts found by him.’ G.L.(Ter. Ed.) c. 214, § 23. Both the plaintiff and the defendant appealed from the final decree. The testimony is not reported.

A report under the statute of material facts must contain every fact necessary to support the decree, from the entry of which no fact not expressly found may be implied. Distasio v. Surrette Storage age Battery Co., 316 Mass. 133, 135, 54 N.E.2d 928. The facts so reported must stand except to the extent that they are inferences from subsidiary findings or are inconsistent with each other or with the pleadings. Turner v. Morson, 316 Mass. 678, 680, 681, 57 N.E.2d 18.

1. The plaintiff contends that in numerous respects there are no findings to support the decree.

(a) The decree (paragraph 1) provides that the parties should ‘transfer the funds in the sum of $252.04 of the joint venture now in the First National Bank of Springfield, Vermont, and the sum of $20 now in the Pilgrim Trust Company of Boston, to the credit of the joint venture account now in The First National Bank of Boston.’ The findings state that there is $245.90 in the Springfield bank, and that the ‘final decree will provide that the amount in the Springfield bank shall be transferred to The First National Bank of Boston.’ This is a sufficient finding to support the decree as to the funds in the Springfield bank. There is, however, no finding as to the Pilgrim Trust Company, and the result is that the provision in the decree respecting such a deposit is erroneous.

(b) The decree (paragraph 2 and 3) provides that the plaintiff should deposit in the joint venture account in The First National Bank of Boston $630.73, ‘being a refund of insurance premiums' received by the plaintiff from A. J. Tonry, and $7,076.35 ‘being the balance remaining in its hands of the check received from the U. S. Housing after payments made’ by the plaintiff for the benefit of the joint venture. There is no reference to insurance premiums or to Tonry in the findings. The judge found that the plaintiff ‘received a check for $38,000 from which payments were made leaving a balance in its hands of $22,576.35,’ but there is nothing indicating that this was received from ‘the U. S. Housing,’ and the amount surely does not identify it. The defendant contends that the finding of the balance in the plaintiff's hands is sufficient to support these orders for payments. We think that this contention cannot prevail, and that the facts do not support the decree in these respects.

(c) The decree (paragraphs 4-7) provides for payments to the defendants Young and Cossaboom with an allowance of $100 for services on behalf of each defendant to his attorney, the defendant Rochefort. The findings show that the defendants Young and Cossaboom were employees who made counterclaim for overtime work, and that these employees and their attorney were entitled to the amounts payable to them in the decree. We cannot quite say that the findings, although lacking in desirable particularity, are insufficient to show the applicability of the ‘Fair Labor Standards Act of 1938,’ 29 U.S.C.A. §§ 207, 216.

2. The decree (paragraph 10) provides that out of the joint venture funds on deposit $2,465.61 should be paid to the defendant. The findings are that it was agreed that work would cease on June 30, 1943, or a short time thereafter; that much was done for a considerable time thereafter; that the defendant was thereby subjected to expense to which the plaintiff refused to contribute; and that the ‘amounts to be accounted for are as follows: $736.65 for salaries and wages from July 15, 1943, to September 29, 1943, $150 for services of an engineer $470.95 for rent of office, telephone, miscellaneous expenses and for moving $569 for the rent of equipment for the office made necessary in finishing the work of the joint venture $539.01 the amount of equipment left over after a division of equipment between the parties in June, 1943, making a total of $2,465.61 for which the plaintiff should account to the defendant.’ The findings also incorporate by reference the agreement of May 14, 1943, a copy of which was annexed to the bill of complaint and was admitted to be a correct copy in the defendant's answer. The agreement provides: ‘The Park Square office is to be the office of the joint venture until June 30, 1943. John Basile & Company, Inc. agrees that the total expense to the joint venture of the office for the entire period ending June 30th shall not be more than $100, this will not include however salaries paid to Rochefort or to Cosseboom. After June 30 books and records of the joint venture shall be kept at the Adams Street [Carilli] office, with John Basile & Company, Inc. having full access and without charge to the joint venture, provided, that if the Springfield job has not been fully completed, then if John Basile & Company, Inc. so request, the Park Square office shall continue to be used until the completion of the work without charge to the joint venture.’ We think that this was an agreement that there would be no expense to the plaintiff or the joint venture for the continuance of the Park Square office after June 30, 1943, and if the items quoted in the findings relate to that office, they are not properly chargeable to the plaintiff, and the expense should be left where it fell, namely, on the defendant which assumed it under the agreement. If the items (or any part of them) do not relate to the said office, we see no reason why the entire cost should be assessed to the plaintiff (as stated in the report of material facts, but not in the decree), which under the agreement of May 14, 1943, is responsible for only fifty-two per cent of the liabilities. This provision in the decree is erroneous.

3. The decree (paragraph 12) provides that the defendant should pay the plaintiff $109.07. The findings were: ‘In the agreement of May 14, 1943, it is provided in paragraph 4 thereof as follows: ‘The Carilli Construction Company shall, in accordance with the terms of Paragraph 20 of the agreement of June 15, 1942 select two thousand (2000) dollars worth of equipment now held by the joint venture at the invoice cost * * *. [Included in such amount shall be such property as is now on hand which was purchased from Sears, Roebuck & Co. The remaining equipment bought and owned by the joint venture shall be distributed between the two corporations at the ratio of fifty-two per cent to the Carilli Construction Company and forty-eight per cent to John Basile & Company, Inc. and each of these corporations shall pay to the joint venture the invoice cost of the property respectively distributed to them.]’ In carrying out the joint venture the Carilli Company placed at its disposal all its equipment. Such equipment is subject to serious wear and tear and loss on various jobs on which it is used. The joint venture in two places provided that no charge would be made by the Carilli Company for the use of its equipment. Notwithstanding this, I construe paragraph 20 of the joint venture agreement and paragraph 4 of the agreement of May 14, 1943, as allowing the Carilli Company to select equipment to the amount of $2,000 for which it was not to be obliged to pay * * *. [The] plaintiff selected equipment to the amount of $2,003.48 but received equipment only to the amount of $1,793.73, the balance remains in the possession of the defendant. The defendant should account for fifty-two per cent of this or $109.07.' The agreement of June 15, 1942, is not in the pleadings or findings. On the facts found, the plaintiff is entitled to receive from the joint venture $206.27, the full amount of the difference between $2,000 and $1,793.73. We do not agree with the defendant's contention that the agreement of May 14, 1943, shows that the plaintiff was to pay for this equipment. In other provisions in that agreement the word ‘purchase’ is used. The word ‘select’ seems to have been employed to indicate that as to this part of the equipment there was no ‘purchase.’ The provision for payment in paragraph 4 is confined to ‘property’ ‘distributed,’ and does not embrace ‘equipment’ the plaintiff was to ‘select.’

4. The decree (paragraph 13) provides that the plaintiff should pay $500 to the defendant for a concrete mixer. The findings show this to be part of the equipment of the joint venture and to be in the...