Charles I. Hosmer, Inc. v. Commonwealth.
| Decision Date | 06 March 1939 |
| Citation | 302 Mass. 495,19 N.E.2d 800 |
| Parties | CHARLES I. HOSMER, INC. v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 8, 1938.
Present: FIELD, C.
J., LUMMUS, QUA DOLAN, & RONAN, JJ.
Contract Construction, Building contract, Performance and breach. Pleading, Civil, Character of pleading, Petition against Commonwealth, Answer. Evidence, Presumptions and burden of proof. Words, "Suspension." Upon a report to this court, a petition against the Commonwealth under G.L.
(Ter. Ed.) c. 258 seeking damages resulting from delays in the performance of a construction contract between the petitioner and the respondent caused by the respondent's officers was regarded as setting forth a claim at law, and a pleading by the respondent entitled a
"plea" and averring that the petitioner's claim was barred by provisions of the contract was treated as an answer in accordance with its plain terms and true nature, with the burden on the petitioner to show that his claim was not so barred.
Where a provision of a construction contract with the Commonwealth, although entitled "Delay in Commencing Work," provided not only that the contractor should "have no claim for damages on account of such delay" but also should "have no claim for damages on account of any delay on the part of the department [of public works] in performing or furnishing any work or materials to be performed or furnished by the department in connection with the execution of the work covered by the contract," and another provision of the contract was that the contract price should be compensation for "all expenses incurred by or in consequence of the suspension or discontinuance of the work," the contractor had no standing to claim damages for delays caused by the department during the progress of the work: a characterization of such delays as having been caused by action of the department which was negligent unreasonable, or due to indecision, but not charging bad faith or conduct tantamount to legal fraud, did not help the contractor.
PETITION, filed in the Superior Court on March 9, 1938. To the petition was annexed the contract relied on, but no part of the specifications which by its provisions were specifically made a part of the contract. The so called "plea" by the respondent averred, except as to paragraph 2 of the petition, "that the contract . . . as annexed to the petition, and in section XVIII of the Standard Specifications incorporated therein, provided against liability for delays of the character set out in the petition." The provisions of "section XVIII" were not set out in the "plea."
The case was heard by J. W. Morton, J., "on the issues raised by the plea." He reported the case.
R. W. Frost, for the petitioner. E. O. Proctor, Assistant Attorney General, for the Commonwealth.
This is a petition against the Commonwealth under G.L. (Ter. Ed.) c 258, to recover a balance due under a written contract, executed by the petitioner with the Commonwealth, for the construction of an extension to a reenforced concrete beam bridge in the towns of Bourne and Wareham; and also to recover damages alleged to have been suffered by the petitioner on account of delays in the performance of the contract, due to the action of the respondent. The petition sets forth that the petitioner was delayed in the commencement of the work by the indecision of the department of public works and the negligent failure of the said department to approve a subcontract for certain materials and to furnish proper plans for the new bridge. It is further alleged that, after the work was begun, its progress was interrupted by the neglect of the department seasonably to give the petitioner a schedule for structural steel fabrication; by the request of the department that the prosecution of the work should not interfere with the use of a public highway; by substituting the use of tie rods instead of cables; by changing the size of the lighting conduit and junction boxes; by the unreasonable delay in giving orders for extra work; and by the unreasonable failure of the department to have the telephone cables removed. The Commonwealth admitted the balance due on the contract as alleged in the second paragraph of the petition, and filed an offer of judgment as permitted by G.L. (Ter. Ed.) c. 231, Section 74, and c. 258, Section 2, in the amount claimed, with interest. To the remaining paragraphs of the petition the respondent filed a paper purporting to be a plea, which alleged that all of the claims set forth in these paragraphs were not recoverable against the Commonwealth. In the Superior Court, this pleading was apparently treated as a plea in equity. The parties agreed that the respondent had paid for all extra work. The only evidence introduced at the hearing in the Superior Court was upon the truth of the allegations contained in this pleading. It was adjudged sufficient and sustained. The judge found and ruled: The case is here upon a report "upon the single question as to whether the provisions of the contract and standard specifications are a defense to the claims for delay alleged in the petition."
G.L. (Ter. Ed.) c. 258 furnishes the only remedy for the establishment and enforcement of all claims at law or in equity against the Commonwealth except in the few instances where some other method is authorized. Nash v. Commonwealth, 174 Mass. 335 . McArthur Brothers Co. v. Commonwealth, 197 Mass. 137. The nature of the claim asserted is one in contract which could be enforced at common law by the ordinary methods if the respondent were other than a sovereignty. The Commonwealth is expressly authorized to avail itself of the provisions of the statutes relative to tender, offer of judgment, set-off and recoupment. We think that the proceedings should be regarded as setting forth an alleged claim at law although brought in the form prescribed by c. 258. Stockbridge v. Mixer, 215 Mass. 415 . Adams v. Silverman, 280 Mass. 23 .
The character and purport of a pleading are to be determined by the substantial allegations and the essential matters which it contains rather than its form or the title by which it is described. E. S. Parks Shellac Co. v. Jones, 265 Mass. 108 , 110. Universal Adjustment Corp. v. Midland Bank, Ltd., of London, 281 Mass. 303 , 328. Pleas in bar have been abolished in actions at law and we think that the pleading in question should be treated as an answer in accordance with its plain tenor and its true nature. Whiton v. Balch, 203 Mass. 576 . Young v. Duncan, 218 Mass. 346 . White v. E. T. Slattery Co. 236 Mass. 28 . Partan v. Niemi, 288 Mass. 111 . DiRuscio v. Popoli, 269 Mass. 482 . Gallo v. Foley, 299 Mass. 1 . Styrnbrough v. Cambridge Savings Bank, 299 Mass. 22 .
The petitioner is not harmed by dealing with the plea as an answer to an action at law rather than as a plea in a suit at equity. The petitioner is not denied any technical advantage. The burden of proof was on the petitioner to show that it was entitled to recover damages for delay. The Superior Court apparently considered the plea as a negative one and that the burden was upon the petitioner to show that the allegations contained in the plea were not true. Reilly v. Selectmen of Blackstone, 266 Mass. 503, 511. Becker v. Zarkin, 292 Mass. 359 . The petition and the plea were based upon the same ground, the written contract. There is no difference between the obligation assumed by the petitioner when it brought the petition to prove that its claims were not barred by the contract and the burden that rested upon it when it was required to prove that the plea, which was based entirely on the same contract, ought not to have been sustained because the contract was not a defence to its claims. The case was actually heard upon the petitioner's right to recover damages for delays. A party whose rights have been correctly determined according to law has no just grounds of complaint even if the court proceeded upon a mistaken assumption of the nature of the pleading that initiated the proceedings in which the decision was made. A full trial, untainted by any substantial error, has been had upon a decisive issue and the petitioner must abide by that result. Magee v. Flynn, 245 Mass. 128 . Rothstein v. Commissioner of Banks, 258 Mass. 196 . Slocum v. Natural Products Co. 292 Mass. 455 . Rathgeber v. Kelley, 299 Mass. 444 . Helvering v. Gowran, 302 U.S. 238, 245.
The findings of fact made by a judge in an action at law must be sustained if they can be supported upon any reasonable view of the evidence, including such rational inferences as the evidence warrants. Moss v. Old Colony Trust Co. 246 Mass. 139 . State Street Trust Co. v. Lawrence Manuf. Co. 284 Mass. 355. Mutual Life Ins. Co. v. Royal, 291 Mass. 487 . Graustein v. H. P. Hood & Sons, Inc. 293 Mass. 207 .
A party to a contract, who is not precluded by its terms from asserting a claim for damages due to delay in commencing or in completing performance, may recover if he can show...
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