Gil-Bern Const. Corp. v. City of Medford
| Decision Date | 11 June 1970 |
| Docket Number | GIL-BERN |
| Citation | 357 Mass. 620,260 N.E.2d 160 |
| Parties | CONSTRUCTION CORP. v. CITY OF MEDFORD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James B. Muldoon, Boston, for plaintiff.
Mark E. Gallagher, City Sol. (Robert J. Blumsack, Asst. City Sol., with him), for defendant.
Before WILKINS, C.J., and SPALDING, CUTTER, REARDON and QUIRICO, JJ.
The case is here on appeals by the plaintiff from an interlocutory decree and a final decree. The interlocutory decree denied the defendant's motion to recommit a master's report, and the plaintiff's motions to strike the defendant's exceptions to the report, to confirm it, and for entry of a final decree. It modified the master's report and, as so modified, confirmed it. To these actions of the judge the plaintiff excepted and thereafter appealed from the final decree which reflected confirmation of the master's report as modified.
On May 24, 1967, the defendant entered into a written contract with the plaintiff. The contract called for certain site preparation to be undertaken by the contractor at the location of a new high school to be subsequently erected by other parties. Work under the contract was to consist of certain topographical changes to conform to subgrades specified in contract plans. For this work the plaintiff was to receive the sum of $99,000 in addition to 'a stated unit price for rock blasting, excavation and removal from the job site of materials.' Section 2.12 of the site plan contract provisions as executed by the parties read that the plaintiff was required to The plaintiff completed its work in satisfactory fashion by November 6, 1967, and in the process accumulated quantities of rock and blasted material in various job sites under the supervision of the architect. These accumulations produced 65,008 cubic yards of material in excess of the 10,000 yards the plaintiff under the contract was required to accumulate over the proposed tennis court area. The plaintiff brought this suit for a declaratory decree pursuant to G.L. c. 231A, claiming title to the excess material excavated and alleging damage due to arbitrary and capricious conduct on the part of the defendant and all acting for it and in its behalf.
On several occasions during the performance of the contract the plaintiff sought permission from the architect to remove stockpiled material from the site. Upon one such request the architect addressed the plaintiff in writing on August 7, 1967, stating in substance that substantial filling operations remained to be completed, that the rock excavated was 'excellent for this purpose,' that when all filling was completed a surplus might remain, that 'the Owner's option to either place this surplus material or order it trucked off-site will be exercised at a later and more appropriate time,' and that the verbal request of the plaintiff to be allowed to truck rock excavation off-site was premature and therefore denied. He further stated, 'No removal of material may be initiated without written authorization from this office.' 1
The master found that the excess 65,008 cubic yards were denied to the plaintiff by a decision of the city manager and not the architect, and that this material was surplus to the needs for material by the plaintiff in the performance of its undertaking. Accordingly, the master allowed recovery to the plaintiff for the fair market value of this material plus its profit in removing it from the job site. He further found the material to have been employed by another contractor in a separate contract with the city on later construction at the site. The effect of the interlocutory decree was to strike from the master's report a reference to the 65,008 yards as being 'surplus to the performance of * * * (the plaintiff's) contractual obligations.' It also struck recitals in the report relative to the part allegedly played by the city manager in refusing permission to the plaintiff to remove the 65,008 yards of material. In the final decree the court adjudged that this material could be removed only with permission of the architect, and since that had not been given, 'no right to removal arose and title to the material ...
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