Daddario v. City of Pittsfield

• Decision Date: 10 December 1938
• Citation: 17 N.E.2d 894,301 Mass. 552
• Parties: DADDARIO v. CITY OF PITTSFIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 552

17 N.E.2d 894

DADDARIO

v.CITY OF PITTSFIELD.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 10, 1938.

Report from Superior Court, Suffolk County; Williams, Judge.

Action for breach of contract by Attilio Daddario against the City of Pittsfield. The superior court entered an order sustaining demurrer to plaintiff's substitute declaration and reported his action for determination of the Supreme Judicial Court.

Order sustaining demurrer reversed and order directed overruling demurrer.H. Snyder, of Boston, for plaintiff.

J. M. Rosenthal, City Sol., of Pittsfield, for defendant.

DOLAN, Justice.

This is an action of contract which was brought in the Superior Court. The judge entered an order sustaining the defendant's demurrer to the plaintiff's ‘substitute declaration,’ on grounds ‘1, 2a & 2b,’ and reported his action for the determination of this court.

The material allegations of the plaintiff's declaration may be summarized as follows: On or about December 20, 1935, the parties entered into a contract in writing by the terms of which the plaintiff undertook and agreed to make certain additions to the defendant's ‘Sewage Treatment Plant.’ While the contract is not set out in full in the declaration, and a copy thereof is not annexed thereto, the plaintiff made profert of it in its entirety in his declaration, and the parties stipulated in this court that the ‘original contract * * * may be referred to in the argument of * * * [the] Cause and may be filed with the Court for reference thereto by the Court in the adjudication of * * * [the] Cause.’

The contract was entered into by the defendant through its mayor and commissioner of public works ‘as required by the laws of this Commonwealth.’ The plaintiff began performance of his part of the contract under the supervision of the commissioner and the latter's ‘properly authorized agent,’ who was the construction engineer of the defendant city. The construction engineer, ‘duly authorized’ under the terms of the contract to act for and in habalf of the defendant, and charged with the duty of furnishing the plaintiff with certain data, furnished him ‘improper grades, lines, and levels,’ and, in consequence, mistakes ‘in grades and levels' resulted. The defendant failed to issue ‘extra work orders' for rectifying the mistaken ‘lines and grades,’ and the plaintiff was forced to correct these variations at a serious loss to him of time and money. The construction engineer was ‘unreasonably slow in giving lines, levels and grades to the plaintiff,’ and in checking the work already performed ‘before the plaintiff could proceed further.’ The construction engineer countermanded orders given by the plaintiff to his employees, gave them inconsistent orders causing ‘confusion and disorganization,’ and gave ‘unreasonable stop orders' and ‘erroneous and improperorders.’ His conduct was ‘designed to interfere with and delay the prosecution of the work by the plaintiff.’ The declaration further states that the plaintiff has always been ready, able and willing to perform the work required to be done by him under the contract; that he did perform so much thereof as he was permitted to do by the defendant but that the latter ‘wilfully and without justifiable cause prevented and made impossible the completion’ of the contract by the plaintiff; that ‘the Defendant thereby breached its contract with the Plaintiff’; and that, in consequence, he sustained the loss of his profits on the contract ‘to his great damage.’

Although the judge sustained the demurrer on grounds 1, 2a and 2b, all grounds stated are now open upon the report. Ratté v. Forand, Mass., 12 N.E.2d 102. The first ground of demurrer is ‘That the matters contained in the plaintiff's * * * declaration are insufficient in law to enable the plaintiff to maintain this action.’ The defendant has argued that it does not appear from the allegations of the declaration that the contract was made as a part of a ‘P. W. A. Project’; and that as the contract, incorporated by reference in the declaration, itself shows that it was in fact so made, the declaration is defective in not containing allegations that two thirds of the city council of the defendant city (established by St.1932, c. 280, § 2) had authorized municipal participation in the project and that the approval of ‘the board and * * * the governor’ had been given thereto as required by St.1933, c. 366, Part 1, § 2, as amended by St.1935, c. 404, § 1 (now further amended by St.1936, c. 83). We are of opinion, however, that, in general, it is sufficient to aver the making of the contract, its terms and the breach thereof, together with such other facts as may constitute essential conditions to the maintenance of the action, as, for example, performance by the plaintiff, or a tender. The details of the various steps in the process of making the contract, such as the offer, the acceptance, the necessary approval of duly authorized agents or of boards of directors, or of public boards or officers in the case of municipal corporations, are matters that commonly need not be set forth. The substantive fact is the making of the contract; the processes are incidental to its coming into force, and it is the ‘substantive facts necessary to constitute the cause of action’ that ‘The declaration shall state * * * with substantial certainty.’ G.L.(Ter.Ed.) c. 231, § 7, Second. In the case of Steffe v. Old Colony Railroad Co., 156 Mass. 262, 30 N.E. 1137, where the sole ground of demurrer was that the declaration did not set forth when notice of the time, place and cause of the injury was given, it was held that the allegation therein that the ‘plaintiff ‘duly’ gave such notice' was ‘enough.’ In that case at page 263, 30 N.E. at page 1138 it is also said ‘* * * where mere defects or omissions in the form of statement are relied on, they must be specially pointed out.’ See, also, Soper v. Manning, 158 Mass. 381, 384, 33 N.E. 516;Hamer v. Eldridge, 171 Mass. 250, 251, 50 N.E. 611;Emmons v. Alvord, 177 Mass. 466, 469, 59 N.E. 126;Friedman v. Connors, 292 Mass. 371, 198 N.E. 513; G.L.(Ter.Ed.) c. 231, § 18, Fourth. Where there is sufficient matter substantially alleged to entitle the plaintiff to his action, the declaration will be good on general demurrer. Dole v. Weeks, 4 Mass. 451. See, also, Suffolk Bank v. Lowell Bank, 8 Allen 355, 357. The question is not as to the sufficiency of evidence to prove due execution of the contract, but is as to the sufficiency of the allegations thereof in the declaration. See O'Brien v. O.'brien, 238 Mass. 403, 410, 131 N.E. 177;Friedman v. Connors, 292 Mass. 371, 198 N.E. 513. We are of opinion that the fulfillment of all statutory requirements for the formation of the contract may be taken to have been properly alleged in the declaration.

In support of the first ground of demurrer, the defendant has also contended that under the contract the commissioner of public works and his duly authorized agent were given wide powers of discretion, and that since the declaration does not allege ‘fraud or bad faith’ no breach of contract is set forth. We are of opinion, however, that the statement in the declaration that the construction engineer ‘embarked upon a course of conduct designed to interfere with and delay the prosecution of the work by the plaintiff,’ followed by specifications of that acts done, sufficiently alleges conduct that is not permitted under any term of the contract. See Ryan v. Boston, 204 Mass. 456, 458, 90 N.E. 581. The action of the trial judge in sustaining the demurrer upon the first ground was not warranted.

We deem it necessary in the case at bar to consider all the grounds of demurrer. Ground numbered 2c reads as follows: ‘The defendant city cannot distinguish from the matters set forth in the plaintiff's said declaration whether (1) It is called uponto defend...