John F. Miller Co., Inc. v. George Fichera Const. Corp.

• Citation: 7 Mass.App.Ct. 494,388 N.E.2d 1201
• Parties: JOHN F. MILLER COMPANY, INC. v. GEORGE FICHERA CONSTRUCTION CORPORATION et al. 1
• Decision Date: 03 May 1979
• Court: Appeals Court of Massachusetts

Page 1201

388 N.E.2d 1201

7 Mass.App.Ct. 494

JOHN F. MILLER COMPANY, INC. v. GEORGE FICHERA CONSTRUCTION CORPORATION et al. ¹

Appeals Court of Massachusetts, Suffolk.

Argued March 20, 1979.

Decided May 3, 1979.

Robert J. Sherer, Boston (Frank M. Capezzera, Boston, and Joseph J. Ganem with him), for defendants.

Sally A. Corwin, Boston (Joseph A. Pisarri, Boston, with her), for plaintiff.

Before BROWN, GREANEY and KASS, JJ.

KASS, Justice.

Factually, this case presents a typical complex of quarrels between a general contractor and a subcontractor. George Fichera Construction Corporation (contractor) was the general contractor on a state aided project in Haverhill for housing elderly persons. John F. Miller Company, Inc. (subcontractor), was the plumbing subcontractor on that job. Many matters were in dispute before the master; two survive on appeal: (1) was the contractor entitled to $9,168.55 from the subcontractor for the latter's delaying the work; and (2) was the contractor entitled to back charge ² the subcontractor for certain toilet room accessories which the latter refused to furnish and install?

The controversy was tried before a master whose report contained extensive findings. Mass.R.Civ.P. 53(b), 365 Mass. 818 (1974), and (e), as amended, 367 Mass. 917 (1975). Although he never modified the master's report, the motion judge entered a judgment which varied materially from the ultimate and general findings of the master. This is a practice which the court below should make every effort to avoid. Ryan v. Stavros, 348 Mass. 251, 253, 203 N.E.2d 85 (1964). From the record we can determine that the judge struck that general finding of the master which concluded that the subcontractor had caused the contractor $9,168.55 in damages by delaying the job. We treat the master's report as having been adopted as thus modified. Ibid.

A master's subsidiary findings of fact in a case to be tried without a jury are binding upon us unless they are clearly erroneous, mutually inconsistent, contradictory or vitiated in view of the controlling law. Selectmen of Hatfield v. Garvey, 362 Mass. 821, 825 (1973). Michelson v. Aronson, 4 Mass.App. 182, 190, 344 N.E.2d 423 (1976). Mechanics National Bank v. Gaucher, --- Mass.App. ---, --- ^A, 386 N.E.2d 1052 (1979). We must then take these subsidiary findings, together with the inferences that ought to be drawn from them, and reach our own general and ultimate conclusions. O'Brien v. Dwight, 363 Mass. 256, 281-282, 294 N.E.2d 363 (1973). Bills v. Nunno, 4 Mass.App. 279, 283, 346 N.E.2d 718 (1976). McNamara v. Westview Bldg. Corp., 4 Mass.App. 670, 671, 357 N.E.2d 777 (1976).

1. Subcontractor's job delay responsibility. The subcontractor submitted its bid on the assumption that it could substitute a waste piping system different from that called for by the plans and specifications. This was a premise the subcontractor chose not to share with the awarding authority at the time it submitted the bid, but raised only when the subcontract was awarded to it and after work was in progress. General Laws c. 30, § 39M(b), permits a supplier of material on public jobs to furnish an item equal to that named in the specifications. Section 39M(e), as amended by St.1967, c. 535, §§ 4, 5, defines "material" as including any "article, assembly, system, or any component part thereof." The substitution which the subcontractor sought to make involved a change in the size, number and location of fittings, pipes and vents and the materials out of which they were made. Partitions and joints would have to be built and cut differently by the contractor to accommodate the substantive system. Indeed, the substitute waste system had the signal advantage of complying with the state plumbing code, whereas the system designed and specified by the architect apparently did not. ³ But, the system which the subcontractor proposed was, as the master found, a "different animal." It was not an "item" which conformed "substantially, even with deviations, to the detailed requirements for the item in the said specifications." G.L. c. 30, § 39M(b), as amended by St.1967, c. 535, §§ 4, 5. For more than an item, the substitute proposal was a fairly fundamental change of the design and system prescribed by the specifications.

The general conditions of the plumbing subcontract provided that ". . . no change in the Drawings, or Specification shall be made unless in pursuance of a written order from the Authority countersigned by the Architect and the Chairman or Director of the State Housing Board authorizing the . . . change." The architect for the project refused to approve a proposed change order unless it was supported by shop drawings, a cost analysis, and a credit for cost savings. Thwarted in securing consent to a change in specifications, the subcontractor nonetheless refused to proceed with the work as drawn and specified. Except as to trifling detail, parties are bound to the precise requirements of their contract. Albre Marble & Tile Co. v. Goverman, 353 Mass. 546, 550, 233 N.E.2d 533 (1968). The master found that the subcontractor's refusal to proceed was the proximate cause of two and one-half months' delay in the job.

Nothing in the record inclines us to fault the master's finding that the subcontractor's six-month delay in installing the rough plumbing caused the contractor two and one-half months' additional time on the job. That the subcontractor's alternate proposal might have been superior did not entitle it to ignore the specifications; that other events occurred which also delayed the job does not exonerate the subcontractor from liability for the delays fairly traceable to it. Morgan v. Burlington, 316 Mass. 413, 417, 55 N.E.2d 758 (1944). Wes-Julian Constr. Corp. v. Commonwealth, 351 Mass. 588, 594, 223 N.E.2d 72 (1967). St. Germain & Son, Inc. v. Taunton Redev. Authy., 4 Mass.App. ---, --- ^B, 340 N.E.2d 916 (1976). The master could properly estimate the delay to the overall project arising out of the subcontractor's inaction. Carter Elec. Co. v. Travelers Indem. Co., 382 F.2d 567, 573-574 (10th Cir. 1967).

2. The toilet room accessories back charge. Both the bid and the governing subcontract referred to the work in § 15B of the specifications, which was captioned "Plumbing." That portion of § 15B of the specifications which described the scope of the work listed "Toilet room accessories" but no subparagraph in § 15B thereafter described toilet room accessories, although four items under the subparagraph captioned "Fixtures" curtain rods, shower curtain tie-backs, towel bars and lavatory legs would qualify as toilet room accessories. The specifications dealt with the rest of the toilet room accessories medicine cabinets, toilet paper holders, toothbrush and tumbler holders, and the like in § 10, captioned "Specialties." The subcontractor says it was not bound to comb the specifications for provisions potentially pertinent to it. Indeed it was not. But in the instant case the subcontractor need have made no more than a cursory examination of the table of contents in the specifications to find the toilet room accessories provision in § 10.

The test for resolving disputes of this kind is the degree of obviousness of the omission, error or discrepancy in the specifications. If the...