Farm-Rite Implement Co. v. Fenestra Inc.

• Decision Date: 13 January 1960
• Docket Number: FARM-RITE
• Citation: 340 Mass. 276,163 N.E.2d 285
• Parties: IMPLEMENT COMPANY v. FENESTRA INCORPORATED and others. 1 Lester M. CLARK v. S. & A. ALLEN CONSTRUCTION COMPANY et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 285

163 N.E.2d 285

340 Mass. 276

FARM-RITE IMPLEMENT COMPANY v. FENESTRA INCORPORATED and others. ¹

Lester M. CLARK v. S. & A. ALLEN CONSTRUCTION COMPANY et al. ²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 4, 1959.

Decided Jan. 13, 1960.

Joseph Golant, Lynn, for Clark.

Warren G. Reed, Boston (Lewis L. Wadsworth, Jr., Winchester, with him), for Farm-Rite Implement Co.

Robert J. Sherer, Dorchester, for Fenestra Incorporated and another.

Lawrence H. Adler, Watertown (Fred Ross, Boston, with him), for S. & A. Allen Const. Co. and another.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN, and CUTTER, JJ.

CUTTER, Justice.

On May 6, 1954, the Commonwealth entered into a contract (the main contract with S. & A. Allen Construction Company (Construction) to build the control tower at Logan International Airport. One Clark, a defendant in one of the present suits and the petitioner in the other, was the successful subbidder and subcontractor to supply the metal windows and metal frames.

Clark, who did not himself fabricate metal windows, approached Farm-Rite Implement Company ³ (Farm-Rite) for assistance. Farm-Rite also was not equipped to furnish windows of the type required, but it, to help out (Clark, placed with Fenestra Incorporated3 (Fenestra) an order dated August 19, 1954, to '[f]urnish galvanized * * * [s]teel [w]indows for the [c]ontrol [t]ower * * * Logan Airport * * * [i]n accordance with verbal quotation * * *. Architects drawings * * * being sent to you today.' A confirmatory order, dated September 24, 1954, changed the payment terms, but made no change in 'other instructions and specifications.' Plans and specifications sent with this order had been received from Clark by Farm-Rite. ⁴ The windows as furnished by Fenestra 'were invoiced' to Farm-Rite on June 27, 1955, for $11,642.88, and, on July 8, 1955, Farm-Rite paid to Fenestra this sum, for which it has not been reimbursed.

Clark issued a purchase order to Farm-Rite on September 10, 1954, which provided that all 'materials [were] to be in accordance with plans and specifications.' As to this, the master, later mentioned, found that Fenestra was required 'to deliver the sashes fabricated [and] bonderized.' Bonderization, he found, is 'a process applied to a smooth * * * surface * * * to roughen it for * * * retaining * * * plaint,' and the bonderization 'was to be according to * * * specifications' later mentioned.

The sashes were delivered to the airport on May 10, 1955. Installation of the windows was completed on August 9, 1955. In 'September, there was * * * [indication] of paint peeling from the sashes.'

Article III of the general conditions of the main contract provided in part that the architect 'shall decide all questions * * * as to the * * * quality, [and] acceptability * * * of the several kinds of * * * materials * * * and shall decide all questions * * * as to the interpretations of the * * * specifications and as to the fulfillment of this contract on the part of the [c]ontractor, and his determination * * * shall be final and * * * shall be a condition precedent to the right of the [c]ontractor to receive any money hereunder.' Clark by this subcontract with Construction 'assumed the obligation to be bound by the architect's determination' under art. III. See G. L. Rugo & Sons, Inc. v. Town of Lexington, Mass., 157 N.E.2d 521; Fred C. McClean Heating Supplies, Inc. v. Jefferson Const. Co., 339 Mass. ----, 159 N.E.2d 95. The architect, after tests, 'determined that the paint failure was due to lack of proper bonderization, and thereupon ordered * * * [Construction] to scrape all the paint from the windows * * * and to effect a new bonderization by * * * rubbing them down with wire brushes * * * to make a rough surface and then to have the sashes repainted. This * * * was a different type of bonderization from that required by the original specifications. * * * [Construction] called upon * * * Clark, to do this work, which Clark refused to do. Thereupon, * * * [Construction] hired [one] Pikens to do the work * * * at' substantial expense.

Farm-Rite on April 22, 1957, filed a bill in equity against Fenestra, Insurance, and Clark seeking, (1) that in the event of a 'determination that Fenestra * * * is liable for the faulty windows, * * * Fenestra * * * be ordered to repay to * * * [Farm-Rite] what * * * [Farm-Rite] has paid Fenestra * * * and that * * * [Farm-Rite] be exonerated by Fenestra * * * and * * * Insurance * * * of any claims * * * of Clark'; and (2) that, if 'there is a determination that Fenestra * * * is not liable * * * Clark be ordered to pay * * * [Farm-Rite] for the windows * * * and that * * * [Farm-Rite] be exonerated from any claims by Clark.' Clark on May 10, 1957, filed his petition (see footnote 2, supra) seeking a decree that Construction owes him $17,035.85 (including some money claimed for extra work) for his work and seeking payment from Surety (see footnote 2, supra) if Construction fails to pay him.

The cases were referred to a master, from whose findings the facts already set out have been summarized. The master concluded ⁵ in the case brought by Farm-Rite (1) that Fenestra and Farm-Rite were not 'file bidders or subcontractors of * * * Construction * * * and are therefore, not bound by' art. III of the general conditions of the main contract; (2) that Fenestra 'carried out its agreement with * * * Farm-Rite * * * in accordance with the order given to it by * * * [Farm-Rite] and that Farm-Rite * * * cannot recover its payment from Fenestra'; and (3) that Farm-Rite 'was a gratuitous intermediary of Clark * * * and * * * was merely doing a favor in lending its credit and obtaining a processor for Clark * * * and that * * * Clark * * * owes Farm-Rite' $11,642.88 with interest.

Farm-Rite and Clark filed objections to the master's report, and the master, in purported compliance with Rule 90 of the Superior Court (1954), furnished certain summaries of evidence. By interlocutory decrees the master's report was confirmed. A final decree in the case brought by Farm-Rite ordered Clark to pay to Farm-Rite the sum of $11,642.88, plus interest and costs, and dismissed the bill as against Fenestra and Insurance. In the case brought by Clark, a final decree dismissed the petition. Clark has appealed from both interlocutory and final decrees. Farm-Rite has appealed from the interlocutory decree and the final decree in the initiated by it.

The Case Initiated By Farm-Rite.

1. Fenestra contends that Farm-Rite cannot appeal, because it has obtained relief against Clark, one of the defendants, whose obligation to it Farm-Rite by its bill sought to have determined. See G.L. c. 214, § 3(3); c. 231A. There is no merit to this contention. Farm-Rite may reasonably be of opinion (1) that its claim against Fenestra denied by the final decree rests on a more solid foundation than its claim against Clark; (2) that, on appeal, it may be adjudged to be liable to Clark in some amount, which would be to Farm-Rite's disadvantage unless it may recover what it claims from Fenestra; or (3) that it is entitled to exoneration, not given it by the final decree, by Fenestra from further claims of Clark, or by Clark from further claims of Fenestra. These circumstances make Farm-Rite an aggrieved party under G.L. c. 214, § 19. Farm-Rite has not been shown to have been a mere stakeholder or to have no pecuniary or other substantial interest in the outcome of the appeal. Cf. Ballard v. Maguire, 317 Mass. 130, 131-132, 56 N.E.2d 891; Worcester Memorial Hospital v. Attorney General, 337 Mass. 769, 770, 150 N.E.2d 26. Cf. also Gordon v. Gordon, 332 Mass. 197, 209, 124 N.E.2d 228.

2. Clark and Farm-Rite each contend that certain vital findings were not justified by evidence summarized by the master. These summaries were furnished in connection with proper exceptions to the master's report (see Shaw v. United Cape Cod Cranberry Co., 332 Mass. 675, 679, 127 N.E.2d 296) which present questions of law for our consideration.

3. In addition to the facts found and the evidence recited in his report (see Clark v. Weisman, Inc., 324 Mass. 224, 228, 85 N.E.2d 444), the master summarized the following evidence as supporting his finding that Fenestra and Farm-Rite 'were not file bidders' under the main contract 'and are, therefore, not bound by' art. III of its general conditions. Clark knew of the arrangement between Farm-Rite and Fenestra. Fenestra 'knew that Clark was the eventual user of the windows.' The contract between Clark and Farm-Rite and between Farm-Rite and Fenestra 'consisted of purchase order[s], letters and the plans and specifications.' Neither Farm-Rite nor Fenestra was a file bidder. Before the purchase orders were issued by Clark and Farm-Rite, respectively, Fenestra received §§ '1 through 15 of the specifications.' Section 8, entitled 'Metal Windows,' contained four pages of requirements. 'The windows could not have been made * * * without having' § 8. Paragraph 8-01a of § 8 provided, 'Attention is directed to the printed form of contract and [s]ection 1 of these specifications entitled 'Supplementary General Conditions' which is hereby made a part of this section.' Section 1 provides in par. 1-01, 'Attention is directed to the printed form of contract of which these specifications are hereby made a part.' The architect, acting under art. III (quoted earlier), 'decided the windows as furnished by Clark were not of the quality required by the contract.'

On this summary of evidence, the finding that Farm-Rite and Fenestra were not file bidders was justified. The summarized evidence disclosed, however, that the master erroneously failed to realize that, even if Farm-Rite and Fenestra were not 'file bidders,' they could be bound by art. III if they in fact agreed to be bound by art. III. The master thus did not apply the right rule of law and did not make findings essential to provide an...