Chicopee Concrete Service, Inc. v. Hart Engineering Co.
| Decision Date | 09 October 1986 |
| Parties | CHICOPEE CONCRETE SERVICE, INC. v. HART ENGINEERING CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Peter J. Gagne, Boston, for plaintiff.
Francis M. Lynch, Boston, for defendant.
Robert J. Sherer, Boston and James F. Grosso, Wellesley, for Associated Gen. Contractors of Massachusetts, Inc., amicus curiae, submitted a brief.
Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.
The Appeals Court held that the defendant, Hart Engineering Co. (Hart), the general contractor on a public works project in Holyoke, and the plaintiff, Chicopee Concrete Service, Inc. (Chicopee), had entered into a contract concerning the supplying of concrete for the project and that Hart was liable for breach of contract when it terminated the contract after the engineering firm representing the city, as was its right, disapproved of Chicopee as a supplier of concrete. Chicopee Concrete Serv., Inc. v. Hart Eng'g Co., 20 Mass.App.Ct. 315, 479 N.E.2d 748 (1985). The Appeals Court thus reversed the summary judgment for Hart entered in the Superior Court, ordered entry of summary judgment for Chicopee on liability, and remanded the case for the determination of damages. Id. at 321, 479 N.E.2d 748.
We granted Hart's application for further appellate review, concerned principally with Hart's arguments that (1) the Appeals Court opinion declared that the terms of a general contract could not become part of a subcontract unless those terms were unambiguously restated in the subcontract and (2) the Appeals Court should not have ordered summary judgment for Chicopee on the question of liability. We agree with the Appeals Court's conclusions and shall comment only on the points that attracted our attention in the application for further appellate review.
Hart argued, successfully in the Superior Court but unsuccessfully in the Appeals Court, that its contract with Chicopee incorporated by reference the provisions of the prime contract that subcontractors had to be approved by the city's representative and that, because the city's representative disapproved of Chicopee as a supplier of concrete, the subcontract was unenforceable. The problem with Hart's argument is that the terms of the prime contract were not fully incorporated in the subcontract by the language Hart included in the purchase order it gave to Chicopee, but rather only terms relating to the work to be done were incorporated by general reference. The Appeals Court was most careful to note that the terms of a general contract could be incorporated fully in the subcontract by appropriate reference. Chicopee Concrete Serv., Inc. v. Hart Eng'g Co., supra at 320, 479 N.E.2d 748. We do not read the Appeals Court opinion as announcing a rule, as the amicus curiae argues, that a provision of a general contract will be included in a subcontract only if it is specifically referred to as a condition of the subcontract. Unless incorporation by general reference is explicitly rejected by some statute or regulation, incorporation by a clearly stated general reference will suffice. 1
The subcontract could have incorporated the general terms and conditions of the general contract by cross-reference to the relevant documents. In this case, however, the incorporation was only of those terms of the general contract that were relevant to the work to be performed by Chicopee.
Hart complains that the Appeals Court should not have ordered summary judgment for Chicopee on the issue of liability. If the Superior Court judge should have entered that judgment on the basis of the material properly before him on the parties' cross-motions for summary judgment, the Appeals Court dealing with the same record is fully warranted in directing that it be done. See 6 Moore's Federal Practice par. 56.27 (2d ed. 1985).
We see no genuine issue as to any material fact which would bar the award of summary judgment on...
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