Dom J. Moreau & Son, Inc. v. Federal Pac. Elec. Co.

• Decision Date: 13 October 1977
• Citation: 378 A.2d 151
• Parties: DOM J. MOREAU & SON, INC. v. FEDERAL PACIFIC ELECTRIC CO.
• Court: Maine Supreme Court

Page 151

378 A.2d 151

DOM J. MOREAU & SON, INC. v. FEDERAL PACIFIC ELECTRIC CO.

Supreme Judicial Court of Maine.

Oct. 13, 1977.

Philip M. Isaacson, Robert S. Hark, Isaacson, Isaacson & Hark, Lewiston, for plaintiff.

Charles H. Abbott, John B. Cole, Skelton, Taintor & Abbott, Lewiston, for defendant.

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

McKUSICK, Chief Justice.

This is an appeal from a Superior Court order granting the defendant's motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Rule 12(b)(6), M.R.Civ.P. For purposes of reviewing the presiding justice's ruling on the sufficiency of the complaint, we treat as admitted by the defendant's motion all well pleaded material allegations in the complaint. Beckett v. Roderick, 251 A.2d 427, 430 (Me.1969); Patterson v. Patterson, 158 Me. 253, 256, 182 A.2d 672, 674 (1962). The complaint contains the following allegations:

In June 1971 the plaintiff, Dom J. Moreau & Son, Inc. (Moreau), an electrical contractor, contracted to supply and install electrical switch gear on a certain construction job in Brunswick, Maine. Moreau ordered the switch gear from Westinghouse Electric Corporation (Westinghouse), simultaneously informing Westinghouse that the gear was required for a job to be completed by September 1, 1971. Westinghouse in turn ordered the switch gear from the defendant, Federal Pacific Electric Company (Federal Pacific).

On September 9, 1971, its order not yet filled, Moreau contacted Westinghouse, informing Westinghouse that its failure to supply Moreau with the switch gear by September 30, 1971 would subject Moreau to the imposition of a penalty in the amount of $200 per day. Federal Pacific did not deliver the switch gear until October 27, 1971. Consequently, penalties were assessed against Moreau in the sum of $5,400.

These events led to a tripartite conference attended by Moreau, Westinghouse, and Federal Pacific. The key paragraph 5 of the complaint relates the outcome of that conference in the following detail:

"Plaintiff complained to Westinghouse, and after a conference between Plaintiff, representatives of Westinghouse, and the Defendant, it was agreed that Defendant would credit Westinghouse with the sum of Five Thousand Four Hundred ($5,400.00) Dollars against Westinghouse's account with Defendant, and Westinghouse, in turn, would credit Plaintiff with the sum of Five Thousand Four Hundred ($5,400.00) Dollars against Plaintiff's account with Westinghouse. In return for Defendant's agreement to make the foregoing credit, Plaintiff agreed in all future orders for electrical switch gear from Westinghouse to specify the products of the Defendant; and Plaintiff did, in fact, so specify Defendant's products to the end that the Defendant enjoyed considerable business therefrom."

On December 28, 1971, Westinghouse gave the promised credit to Moreau. Over three years later, on January 13, 1975, however, Federal Pacific refused Westinghouse the $5,400 credit. Federal Pacific's action provoked Westinghouse to retract Moreau's credit and to commence a successful suit against Moreau to recover the sum of $5,400. Moreau subsequently instituted this action to recover the sum of $5,400 from Federal Pacific.

The sufficiency of Moreau's complaint to state a claim upon which relief can be granted must be determined in accordance with the test enunciated by this court in Jones v. Billings:

"The test of the sufficiency of a complaint under the new rules of civil procedure is whether or not it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." 289 A.2d 39, 40 (Me.1972).

Accord, Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957). Mindful of the liberalized pleading authorized by our civil rules, we construe the pleadings favorably to the pleader and in the interests of substantial justice. See Richards v. Ellis, 233 A.2d 37, 38 (Me.1967); Rules 1, 8(f), 15(a), M.R.Civ.P. Cf. Casco Bank & Trust Co. v. Rush, 348 A.2d 239, 241 (Me.1957) (function of the complaint is to provide fair notice of the claim; this may be sufficiently performed by a rather generalized statement); Cushman v. Perkins, 245 A.2d 846, 851 (Me.1968) (intent of Maine civil rules is to simplify pleading, although it is still necessary to aver the essential facts of a cause of action).

In order to state a claim upon which relief can be granted, a complaint must aver either the necessary elements of a cause of action or facts which would entitle a plaintiff to relief upon some theory. Forbes v. Wells Beach Casino, Inc., 307 A.2d 210, 215 (Me.1973); Cohen v. Bowdoin, 288 A.2d 106, 110 (Me.1972); Parsons v. Chasse, 159 Me. 463, 470, 195 A.2d 72, 76 (1963). If the complaint fairly alleges each essential element of a claim, it will not fail for insufficiency if certain of the necessary facts are alleged in a conclusory manner. Field, McKusick & Wroth, Maine Civil Practice, § 12.11, p. 249 (2nd ed. 1970).

The parties agree that allegations of a meeting of the minds, consideration, and mutuality of obligations state a legally enforceable contract. Akerley...