Duggan v. Matthew Cummings Co.

• Decision Date: 10 December 1931
• Citation: 277 Mass. 445,178 N.E. 825
• Parties: DUGGAN v. MATTHEW CUMMINGS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 445

178 N.E. 825

DUGGAN

v.MATTHEW CUMMINGS CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 10, 1931.

Appeal from Municipal Court of Boston, Appellate Division.

Action by Michael J. Duggan against the Matthew Cummings Company. A report of the appellate division after findings of the judge of the municipal court of the city of Boston in favor of the plaintiff and denying defendant's requests was dismissed, and defendant appeals.

Order dismissing report affirmed.

A. C. Blake, of Boston, for plaintiff.

F. P. Garland, of Boston, for defendant.

FIELD, J.

This is an action of contract brought in the municipal court of the city of Boston to recover damages for breach of a contract for the erection by the plaintiff of the structural steel in a building. The declaration alleges the making of a contract, a copy of which is attached thereto, and breach thereof by the defendant. The copy set out consists of a written proposal by the plaintiff, dated May 4, 1930, addressed to the defendant, and a letter from the defendant to the plaintiff, dated June 4, 1930. The answer is a general denial. The question in controversy is whether a contract was made.

There was evidence that on May 4, 1930, the plaintiff submitted to the defendant the written proposal, set out in the declaration, for the erection of structural steel in a building, referred to therein, at the price of $17 a ton on terms terein stated, and that on June 4, 1930, the defendant wrote the letter to the plaintiff, set out in the declaration, which was received by the plaintiff, and which stated that ‘We hereby accept your proposition to erect the structural steel at the Administration Building, City Hospital. Please come into the office and we will draw up our standard form of contract.’ The proposal contained the following provisions, among others: ‘Price for said work $17 per ton. This price is based on the present scale of wages. This price is based approximately [blank] tons of 2000 pounds and is subject to prompt acceptance. Steel to be ready for erection [blank] Shipments completed [blank] Field Paint [blank] Field Painting [blank] * * * Terms of payment shall be as follows:-On or before the [blank] day of each month 85% of the value of labor performed the previous month. Final payment of the balance of 15% within thirty days after the work included under this contract is completed.’ The blank spaces indicated were not filled in. There was evidence also that on June 10, 1930, the plaintiff and the defendant's president met at the defendant's office and its president then asked the plaintiff if he had received the letter of June 4, and receiving an affirmative reply, asked if that was a good enough contract for him, and the plaintiff replied that ‘it was enough-all we had before.’ There was somewhat conflicting evidence as to a later conversation in regard to the terms of the contract, including evidence that nothing was said by the defendant's president then or at any other time with reference to the plaintiff's signing a ‘standard form of contract,’ but there was no evidence of any agreement to modify the contract, if a contract then existed.

The defendant made the following requests for rulings of law and findings of fact: ‘1. Upon the law and upon the evidence and the pleadings the plaintiff is not entitled to recover in this action upon the following grounds and each of them: (a) The evidence does not show that any contract was ever made by and between the plaintiff and the defendant. (b) The defendant's letter of June 4, 1930 in reply to the plaintiff's proposal of May 4, 1930 was not an unqualified acceptance of the plaintiff's proposal but was conditional upon the execution of the defendant's standard form of contract. (c) Upon all the evidence the plaintiff refused to execute the defendant's standard form of contract as provided for in the defendant's letter of June 4, 1930. (d) There is no evidence that the plaintiff was ready and willing to execute the defendant's standard form of contract as provided for in the defendant's letter of June 4, 1930. 2. The defendant's letter of June 4, 1930 in reply to the plaintiff's proposal was not an unqualified acceptance of the plaintiff's proposal but was conditional upon the execution of the defendant's standard form of contract. 3. The plaintiff's proposal on May 14, 1930 and the defendant's reply thereto dated June 4, 1930 at most constitute merely preliminary negotiations between the parties under which the parties contemplated a reduction to writing of their agreement setting forth the terms thereof before the agreement be considered as complete.’

The judge denied the defendant's requests and found that a contract was made, that the defendant expressly waived execution of the ‘standard form of contract,’ that the ‘plaintiff was ready and willing to execute said standard form but was told by defendant this was not necessary and was further told by defendant that they the plaintiff and defendant would proceed as they had in an earlier contract for similar business when no formal standard form of contract was executed,’ and that the plaintiff did not refuse to execute the defendant's ‘standard form of contract,’ and found for the plaintiff. A report to the appellate division was dismissed and the defendant appealed.

Findings of fact are not reviewable on this appeal. It brings before us for review only the rulings of law made by the trial judge and reported by him to the appellate division, and the...