Hardware Specialties, Inc. v. Mishara Const. Co., Inc.

• Decision Date: 21 May 1974
• Citation: 2 Mass.App.Ct. 277,311 N.E.2d 564
• Parties: HARDWARE SPECIALTIES, INC. v. MISHARA CONSTRUCTION COMPANY, INC.
• Court: Appeals Court of Massachusetts

Page 564

311 N.E.2d 564

2 Mass.App.Ct. 277

HARDWARE SPECIALTIES, INC. v. MISHARA CONSTRUCTION COMPANY, INC.

Appeals Court of Massachusetts, Berkshire.

Argued April 19, 1974.

Decided May 21, 1974.

David C. Hawkins, Worcester, for defendant.

Sally A. Corwin, Boston, for plaintiff.

Before ROSE, GOODMAN and GRANT, JJ.

GRANT, Justice.

This is an action of contract by which the plaintiff, as the finish hardware subcontractor on the same public housing project as that considered in Mishara Constr. Co., Inc. v. Transit-Mixed Concrete Corp., --- Mass. ---, 310 N.E.2d 363 (1974), seeks to recover from the defendant, as the general contractor on that project, the cost of installing the items of finish hardware which the plaintiff, by reason of the subcontract, was required to and did deliver to the project. The matter was referred to an auditor (facts not final), who found for the plaintiff. The defendant reserved the right to introduce further evidence, and the matter was thereafter tried to a judge of the Superior Court on the auditor's report and certain further evidence. The judge found generally for the plaintiff, and the matter is now here on the defendant's exception to the denial of its requests for rulings of law.

The 1966 subcontract, which takes the form appearing in G.L. c. 149, § 44I, as amended by St. 1960, c. 771, § 7, requires the plaintiff to 'furnish all labor and materials required for the completion of all work specified in' § 10A of the specifications ('Finish Hardware') prepared by the architect for the Pittsfield Housing Authority (authority). The express provisions of § 10A need not be detailed in any greater length than is necessary to demonstrate that they are ambiguous on the question who is to install the finish hardware. Although certain of the provisions of §§ 10A--01 ('General Requirements') and 10A--09 ('Installation') look in the direction of installation by the plaintiff, the provisions of § 10A--02 ('Scope of the Work') are strangely silent on the question of installation, providing only that the '(s)cope fo work includes furnishing, delivery, packaging, and marking of all finish hardware required for completion of the building requirements.' The provisions of § 10A--04 ('Hardware Schedule') require the plaintiff to supply thirteen different 'sets' of finish hardware for use at particular locations in the buildings, each 'set' to include specifically designated items such as butts, locksets, lock cylinders, stops, push plates, and kick plates. The provisions of § 10A--06 ('Packing and Marking') require the plaintiff to '(p)ackage each item of hardware separately in individual containers, complete with the necessary screws, bolts, and fastenings, keys, instructions, and templates' and to '(m)ark each item with the heading number corresponding to the number as shown on the . . . Hardware Schedule.' The provisions of § 10A--07 ('Delivery') require that '(t)emplates for template hardware shall be delivered to the Metal Frame Fabricator,' that '(a)ll other hardware shall be delivered to the (defendant) for field instllation,' and that '(d)elivery shall be made by the Hardware Supplier . . . in ample time so as not to impede progress of the work.' Sections 10A--04, 10A--06, and 10A--07, read together and standing by themselves, look to installation by the defendant or by a third party of the items the plaintiff is required to supply; there would seem to be no need for separate packing, for written instructions, or for prior delivery to the defendant if it were intended that the plaintiff should install all the items in question.

In these circumstances, evidence of the business custom of the finish hardware supplier either to install or not to install the items to be supplied by him was admissible to resolve the ambiguity with respect to the duty of installation. See Fred C. McClean Heating Supplies, Inc. v. Jefferson Constr. Co., 339 Mass. 356, 367--369, 159 N.E.2d 95 (1959); Metro Insulation Corp. v. Leventhal, 1 Mass.App. ---, --- - ---, ^a 294 N.E.2d 508. Contrast Daly v. Kingston, 177 Mass. 312, 316--317, 58 N.E. 1019 (1901); Meegan v. Hall, 241 Mass. 449, 451--452, 135 N.E. 555 (1922). Such evidence appears to have been received by the auditor, who expressly found that 'it was the custom under then current trade practies for the subcontractor supplying finish hardware not to install the same.' ¹ There was conflicting evidence before the trial judge on the question whether there was such a trade practice as that found by the auditor.

It should be apparent from what has already been said that we see no error in the denial of the defendant's request 4, which was '(t)hat the terms of the subcontract between plaintiff and defendant were unambiguous and may not be varied by evidence of custom and usage regarding responsibility for installation of finish hardware.' The argument that a contract may not be 'varied' by evidence of pertinent custom and usage misconceives the role played by such evidence. 'Valid usages known to contracting parties, respecting the subject matter of an agreement, are by implication incorporated therein, unless expressly or impliedly excluded by its terms, and are admissible to aid in its interpretation, not as tending in any respect to contradict or vary a contract, but upon the theory that the usage forms a part of the contract.' Baccari v. B. Perini & Sons, Inc., 293 Mass. 297, 303, 199 N.E. 912, 915 (1936).

On somewhat similar reasoning, there was no error in denying the defendant's requests 2, 3, 7, and 9. ² Although the above quoted finding of the auditor with respect to 'the custom under then current trade practices' lost its artificial legal force as prima facie evidence as soon as the defendant introduced evidence before the judge which tended to negative the existence of any such custom, that finding continued to be evidence in the case on which the judge could base a general finding for the plaintiff. Cook v. Farm Serv. Stores, Inc., 301 Mass. 564, 565--567, 17 N.E.2d 890 (1938). In short, as it was open to the judge to find a custom in the trade that the finish hardware supplier not install what he supplied, he could not properly have ruled as matter of law that the plaintiff was required to install the hardware in question. ³

Requests 5, 6, and 8 may be considered together. The auditor found in his report that another section of the specifications in the contract between the defendant and the authority, dealing with the carpentry subcontractor, contained the provisions set out in the margin. ⁴ In another part of the report the auditor stated that '(i)n writing the specifications for the contract . . . it was the opinion of the . . . (authority) that it was not customary under then current trade practices for the subcontractor providing finish hardware to install the same, and the installation of the finish hardware was expressly required by the . . . (authority) in Section 6A of the specifications, relating to the work to be performed by the carpentry subcontractor.' Request 8 was to the general effect that the provisions of the finish hardware specifications could not be varied by anything found in the carpentry specifications. Requests 5 and 6 were framed with a view to requiring the judge to ignore the statement just quoted. We would be inclined to agree that in the ordinary case one subcontractor should not be permitted to escape the obligations he has assumed under his subcontract by pointing to the obligations which a second subcontractor may have assumed in a separately negotiated contract between himself and the general contractor. Compare Russo v. Charles I. Hosmer, Inc., 312 Mass. 231, 234--235, 44 N.E.2d 641 (1942). However, in the circumstances of this case, we cannot agree that there was any error in the judge's having looked at the carpentry specifications.

This case is governed by the specific provisions of G.L. c. 149, §§ 44A--44J, as amended. The first sentence of § 44C (as appearing in St.1956, c. 679, § 1) required that the contract awarded to the defendant include specifications detailing all labor and materials to be furnished thereunder. The second sentence of that section (as appearing in St.1964, c. 523) required (with possible exceptions not here material) that there be a separate section of the specifications for each of seventeen (or more) distinct classes of work. The third sentence of § 44C (as appearing in St.1957, c. 590, § 2) required that '(e)ach separate section in the specifications . . . (should) require the subcontractor to install all materials...