Joseph E. Bennett Co., Inc. v. Com.

• Decision Date: 27 December 1985
• Parties: JOSEPH E. BENNETT CO., INC. v. COMMONWEALTH.
• Court: Appeals Court of Massachusetts

Page 1145

486 N.E.2d 1145

21 Mass.App.Ct. 321

JOSEPH E. BENNETT CO., INC. v. COMMONWEALTH.

Appeals Court of Massachusetts,

Suffolk.

Argued Sept. 12, 1985.

Decided Dec. 27, 1985.

Christopher H. Worthington, Asst. Atty. Gen., for commonwealth.

Marshall J. Handly, Belmont (Barry J. Gordon, Boston, with him), for plaintiff.

Before PERRETTA, KASS and WARNER, JJ.

KASS, Justice.

Much in this case illustrates and underscores the skepticism we expressed in Glynn v. Gloucester, 9 Mass.App. 454, 462-463, 401 N.E.2d 886 (1980), about the wisdom of referring cases to masters. Too often, "delay, extra expense and frustration" result. Id. at 463, 401 N.E.2d 886. See also O'Brien v. Dwight, 363 Mass. 256, 279-280, 294 N.E.2d 363 (1973). The complaint in the case at bar was filed October 12, 1976. Until the Superior Court issued a conditional notice of dismissal, the parties allowed the case to idle on the docket for four and a half years. The reference to a master was made on October 21, 1981. Two years later, October 7, 1983, the master filed his report. As will appear, the report was not a satisfactory one. To be sure, construction dispute cases--and this is one--sometimes involve extensive fact finding from a mass of technical detail, and, therefore, are prime candidates for reference to a master. If, however, as in Glynn v. Gloucester, and the instant case, the major questions turn on interpretation of the governing contract, it is likely that a judge will be able to produce a shorter trial, faster resolution, and a more reviewable record.

We pause to explain what the case is about. Joseph E. Bennett Co., Inc. (Bennett), acted as the general contractor to build a 450-bed facility (requiring nine new buildings as well as renovations of certain existing ones) at M.C.I., Bridgewater. The master determined that the Commonwealth was liable to Bennett for six categories of claims. The judge who heard the Commonwealth's objections to the master's report and Bennett's motion to adopt the report adopted the master's conclusion that the Commonwealth was liable to Bennett in the amount of $491,411. Judgment entered accordingly. On its appeal, the Commonwealth challenges four of the six categories of damages found by the master: (1) the blasting and excavation claim ($15,960); (2) the temporary electric power claim ($24,616.30); (3) the temporary heat claim ($111,626.92); and (4) the delay claim ($251,953.92).

1. The master's report. As to all four claims the question was not so much what the contractor did, but what it was required to do under the construction contract. It is a conspicuous failing of the master's report that it contains no specific references (by section, paragraph or text) to the contractual provisions which the master applied and interpreted. Those texts are indispensable to analysis of the legal questions which the parties dispute. Glynn v. Gloucester, 9 Mass.App. at 458, 401 N.E.2d 886. The Commonwealth failed to repair the deficiency when it filed objections to the master's report. Although the Commonwealth objected to the imposition of liability "without support therefor in the contract documents," it referred to no portions of the contract documents which the master or a reviewing court ought to examine. Similarly, the Commonwealth objected that the "contract imposes the responsibility of costs for temporary heat upon the contractor and not upon the awarding authority" but did not isolate any contractual provisions upon which it relied.

In twenty-eight of forty-one objections, the Commonwealth requested the master to summarize the evidence. The objections refer the master to no portions of the record in which the evidence the Commonwealth desires to be summarized appears. See Miller v. Winshall, 9 Mass.App. 312, 315-316, 400 N.E.2d 1306 (1980). The master never did summarize the evidence and the Commonwealth did not move the court to order the master so to do, a motion which would have required the accompaniment of affidavits setting forth the evidence as the Commonwealth thought the master ought to have prepared it. Id. at 316, 400 N.E.2d 1306. ¹ Into its objections, the Commonwealth wove a motion to strike the report. Id. at 315, 400 N.E.2d 1306.

In light of the age which the case has already attained (it is, after all, going on ten), we think it unwise to make either of the most apparent institutional responses, viz., to recommit the case to the master for further findings or to discharge the order of reference and to direct a judge to try the four claims still in dispute. Such a course would be appropriate if the on-the-job facts were still in dispute. They are not, ² and we are in as good a position as a master or trial judge to construe the legal meaning of the contract documents. See Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass.App. 412, 429, 402 N.E.2d 76 (1980). Compare Thomas O'Connor & Co. v. Medford, 16 Mass.App. 10, 14-16, 448 N.E.2d 1276 (1983). Those documents, although not incorporated in the master's report, were made part of the record by the judge who heard the motion to adopt the master's report.

2. The blasting claim. There was ledge in a portion of the site which it was necessary to blast. When the blasting hole reached the prescribed depth for footings and foundation walls and floors, the excavation was found to contain excessive loose ledge, not suitable as a base for a concrete floor. To reach solid material, it became necessary to remove six feet of loose ledge and then, to bring the foundation hole to the elevation required by contract, the contractor had to replace the shattered ledge with gravel. In order to have the floor at the right grade it became necessary to extend the concrete foundation walls. The contractor claimed an extra for this work.

Several sections of the construction contract, §§ 2-10.2, 2-10.3, 2-10.4, and 2-10.11, deal with difficult soil conditions and allocate the economic burden between the parties. Another, § 3-16, deals with, and provides compensation for, additional concrete required to adjust to unanticipated soil conditions. The Commonwealth, in defense to Bennett's claim, relies on § 2-10.11, a provision which imposes on the contractor the burden of bringing an excavation to the correct grade should "the excavation for slabs be carried, through error, beyond the depth and dimensions" called for. ³ The master found (such we take to be the import of his observation that there was no evidence to the contrary) that Bennett's blasting and excavation were neither negligent nor improper, i.e., they were free from error. To the extent corrective work became necessary, it was a function of physical conditions rather than a mistake by the contractor. We read § 2-10.11, the full text of which we set forth in the margin, ⁴ as placing the onus on the contractor only if the hole gets too deep because the contractor has erred. Here the excavator worked to the prescribed depth and, so the master found, the nature of the ledge, not anything the contractor did or did not do, required additional digging. So much of the judgment as awarded $15,960 on account of extra excavation and foundation work was, therefore, correct.

3. Temporary electricity. Under §§ 1-19 and 25-05, the contractor (through the electrical subcontractor) was to supply temporary light and power until permanent feeders were in operation. Nothing in the specifications indicates the location of the Brockton Edison Company (Edison) contact point from which temporary feeder lines might run. The master found that it was the policy of the State Bureau of Building Construction (BBC), if the tie-in point was not on site, to show the exact location where the link could be made. He further found that the plans and specifications induced a "reasonable expectation that electric power would be provided at or near the contract project site." The Commonwealth's consulting engineer estimated $5,000 as the cost of providing temporary light and power, from which it might be inferred that the engineer though a power source was available on site. That assumption was mistaken by over 4,000 feet and Bennett was obliged to erect poles and string lines to cover the distance, at an alleged cost of $24,616.30.

Much as in Richardson Elec. Co. v. Peter Francese & Son, Inc., 21 Mass.App. 47, 50-52, 484 N.E.2d 108 (1985), the failure of the plans and specifications to locate the contact point for temporary power, coupled with what was found to be usual practice, caused the contract documents to be misleading. The Commonwealth draws no strength from Albre Marble & Tile Co. v. Goverman, 353 Mass. 546, 549, 233 N.E.2d 533 (1968), upon which it relies. That case states the proposition that public contractors are held to strict compliance with plans and specifications. There is no finding that Bennett deviated from the contract documents. Rather, Bennett adhered to those documents as they are reasonably to be construed. The Commonwealth fares no better with its argument that it can be liable only if contract documents affirmatively misstate information. See Alpert v. Commonwealth, 357 Mass. 306, 321, 258 N.E.2d 755 (1970). Omission joined with other facts can produce a misleading expression of contract requirements. Richardson Elec. Co. v. Peter Francese & Sons, Inc., supra, 21 Mass.App. at 51-52, 484 N.E.2d 108. So much of the judgment as awarded $24,616.30 on account of extra cost in connection with providing temporary light and power was, therefore, correct.

4. Temporary heat. Section 1-18 of the supplementary general conditions to the general contract required the contractor to provide temporary enclosures and heat to permit work to be carried on from November through March. That provision was in conformance with St.1970, c. 497. ⁵

Acting under the statutory injunction to establish standards for weather protection and temporary heat, the Director of Building Construction published a public...