Kass v. Todd

• Decision Date: 16 June 1972
• Citation: 284 N.E.2d 590,362 Mass. 169
• Parties: Donald KASS v. George H. TODD, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 590

284 N.E.2d 590

362 Mass. 169

Donald KASS v. George H. TODD, Jr.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 7, 1972.

Decided June 16, 1972.

Leo J. Hession, Wellesley, for plaintiff.

Joel Rome, Framingham, for defendant.

Before TAURO, C.J., and SPIEGEL, REARDON, BRAUCHER and HENNESSEY, JJ.

SPIEGEL, Justice.

The plaintiff brought this bill in equity in the Superior Court to require the defendant, who had contracted to build a house for him in Natick, to obtain an occupancy permit, to turn on the sewage pumping station, and to deliver house and garage keys to him. He also asked that damages be assessed for costs (e.g. rent, storage) 'occasioned by the . . . (defendant's) refusal to allow the . . . (plaintiff) to occupy the premises owned by the . . . (plaintiff).' The defendant filed a counterclaim alleging that he did 'a major and substantial portion' of the work and that the plaintiff 'failed . . . to make payments to the defendant as provided in . . . (the) agreement' and that the plaintiff owes him the 'fair and reasonable value' of labor performed and materials supplied, plus interest. The defendant (apparently alternatively by means of an account annexed) sought recovery for the balance due under the contract plus certain extras ordered by the plaintiff and furnished by the defendant, plus interest.

On June 16, 1969, the judge by interlocutory decree ordered the defendant to place in service and maintain the sewage pumping station and not to interfere with the operation of the pump until otherwise ordered by the court. The case was then referred to a master who made certain subsidiary and ultimate findings.

The plaintiff then filed two motions, one to strike the report and the other to recommit it for the purpose of having the master file a fair summary of the evidence and to make additional subsidiary findings relating to certain specified ultimate findings. Both motions were denied. An interlocutory decree was then entered confirming the master's report, and a final decree was entered adjudging that $15,525.58 (plus interest amounting to $1,849.59) was due from the plaintiff on the defendant's counterclaim, and ordering that the plaintiff pay the defendant this amount. The decree also contained the following: 'The suit is otherwise dismissed.' The plaintiff appealed from the final decree.

We summarize the master's relevant subsidiary findings. In the spring of 1968, the defendant owned a twenty-two lot subdivision in Natick. On May 10, 1968, the defendant conveyed lot number 4 of the subdivision to the plaintiff, and on May 13, 1968, the parties entered into a contract for the construction of a house on this lot. 'At the time of the contract and discussions prior thereto the . . . (plaintiff) told the . . . (defendant) that he planned to sell his property in Connecticut, move his family to Cape Cod for the summer and house them in a 'house trailer' . . . and that he wanted the house to be completed in time for his children to enter school in the Natick School System that coming fall.' The defendant told the plaintiff that he would try to 'accomodate' him 'but could not be certain that the house would be completed by that date.' The defendant did tell the plaintiff 'that he would try to have the house completed on or before Labor Day, 1968.'

In mid-August, 1968, it was clear that the house would not be completed by Labor Day. Between mid-August, 1968, and November 26, 1968, the parties had 'repeated discussions' about the completion date. Several times the defendant stated that he would try to have the house completed by a certain date. Each time he was unable to comply. It appears that the delays were caused by the repeated failures of subcontractors to show up on the job.

On December 2, 1968, the defendant submitted a bill to the plaintiff for $2,213.75 for work then being completed and eventually completed by nightfall of that day. On December 9, 1968, the defendant submitted a bill for $1,990.12 covering work in progress which was completed within forty-eight hours of the time the bill was given to the plaintiff, and the defendant requested payment of the December 2 bill. Bills were due and payable within seven days. The plaintiff stated that he would not pay the bill because the defendant took 'too long to build the house.' The defendant 'reasonably believed' that the plaintiff did not intend 'to pay him for work that had been done and for any outstanding charges' yet to be billed and advised the plaintiff that unless the 'bills were paid . . . he would consider the contract ended and . . . he would proceed no further with any work on the building.' On December 11, 1968, the defendant submitted a bill for $1,450 for work being completed that day. On January 14, 1969, the defendant 'obtained town approval of the sewage system.' ¹

At the outset of the hearing the parties agreed that the bills paid by the plaintiff totaled $22,859.92.

On July 8, 1969, the master, accompanied by the attorneys for both parties, viewed the premises and observed that the construction was incomplete in some respects. The master was of the opinion that the work remaining to be done was negligible.

The master stated his ultimate findings as follows: '1. The parties entered into a contract for the construction of a house at number 8 Countryside Road, Natick, on May 13, 1968. 2. There was no contract or agreement between the parties as to the date that the house would be completed. . . . 6. The . . . (plaintiff) breached the construction contract by failing to make the payments to the . . . (defendant) as they became due. 7. The . . . (defendant) applied for and received a certificate of occupancy for the premises built by him for the . . . (plaintiff). 8. The . . . (defendant) turned over the keys to the premises to the . . . (plaintiff). 9. The breach of the contract by the . . . (plaintiff) justified the . . . (defendant) in his refusal to proceed further with the construction work, or proceed with anything else to make the premises habitable. 10. The failure on the part of the . . . (plaintiff) to pay the . . . (defendant) was a material breach of the contract. 11. On the date of the . . . (bill) the balance due from . . . (the plaintiff) on the contract plus extras charged by the defendant . . . is $7501.11. Since . . . (the defendant) agreed to build the house in accordance with the building requirements of the Town of Natick, I disallow an extra of $315.70 charged by . . . (the defendant) for installing additional Western Light Fir joists as required by the building inspector for the town. I also disallow an extra of $407 charged as an extra for increasing the width of the concrete garage foundation from 8 to 10 for the same reason. 12. If, as a matter of law, the failure to pay was a material breach of the contract which I find to be a fact, the . . . (defendant) is entitled to recover in quantum meruit for the fair value of the work, labor and materials supplied by him to the . . . (plaintiff). 13. Above the land I find that the fair value of the building is $38,385.50. 14. I find that the fair and reasonable value of the property in its state as it was on the date of the . . . (hearing) and as it was at the time the . . . (plaintiff) breached his contract was $38,385.50. 15. I find that if the . . . (defendant) is entitled to recover in quantum meruit rather than on the contract that the balance due the . . . (defendant) after deducting payments made on account and allowances given by the . . . (defendant) to the . . . (plaintiff) is $15,525.58. 16. If the . . . (defendant) is limited to the amount due under the contract, I find that the . . . (plaintiff) is indebted to the . . . (defendant) in the sum of $6,778.41. 17. I find that there is no liability on the part of the . . . (defendant) to pay for transportation of children to and from school or for storage for furniture, furnishings and fixtures of the . . . (plaintiff). 18. The amount of my findings interest at the rate of 6% per annum from December 12, 1968 at which time the entire balance on the contract was due' (sic).

1. There was no error in the denial of the plaintiff's motion to recommit. No objections to the master's report were filed as required by Rule 90 of the Superior Court (1954). The motion to recommit is not a substitute for the filing of objections. Both procedures must be followed. See, e.g., Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180, 182, 184, 138 N.E.2d 777; Lattuca v. Cusolito, 343 Mass. 747, 748, 180 N.E.2d 658. Moreover, in so far as the plaintiff wanted the master to find additional subsidiary facts, the allowance or denial of the motion was discretionary with the judge (Buckley & Scott Util. Inc. v....