Levings v. Forbes & Wallace, Inc.

CourtAppeals Court of Massachusetts
Writing for the CourtBefore HALE; KASS
Citation396 N.E.2d 149,8 Mass.App.Ct. 498
PartiesWillard S. LEVINGS, trustee v. FORBES & WALLACE, INC.

Page 149

396 N.E.2d 149
8 Mass.App.Ct. 498
Willard S. LEVINGS, trustee
v.
FORBES & WALLACE, INC.
Appeals Court of Massachusetts, Middlesex.
Argued Sept. 7, 1979.
Decided Oct. 24, 1979.

Page 151

[8 Mass.App.Ct. 499] Donald N. Sweeney, Boston, for plaintiff.

William K. Danaher, Jr., Springfield, for defendant.

Before [8 Mass.App.Ct. 498] HALE, C. J., and GRANT and KASS, JJ.

[8 Mass.App.Ct. 499] KASS, Justice.

Although the underlying cause is a contract action for material sold and services delivered, the insertion in the complaint of a claim under G.L. c. 93A, § 11, requires consideration once again of the reach of that statutory provision to commercial disputes between business organizations.

First, however, we must meet a procedural issue. The complaint was filed on July 8, 1974. It alleged that the plaintiff (Trane), at the request of the defendant (Forbes), repaired a central air conditioning unit located in a department store in Springfield; that Forbes had refused to pay Trane's bill for labor and materials; and that Forbes, from the time it first placed the written order for the work, never intended to pay Trane for its labor and materials. It is the last allegation, that in effect Forbes duped Trane into working for it, on which the c. 93A claim rests.

Procedural skirmishes followed, largely involving efforts by Trane to make discovery, which Forbes resisted by leading Trane a merry chase. For this Forbes incurred mild sanctions. Mass.R.Civ.P. 37, 365 Mass. 797 (1974). On March 16, 1976, Trane moved for a speedy trial, and that motion was allowed. On July 22, 1976, however, the case was dispatched to a master on an order of reference which directed him not to report the evidence since Forbes had demanded a jury; i. e., the master was to make his report "facts not final." Not until March 11, 1977, just five days short of a full year after the motion for a speedy trial had been allowed, did the master file his report. Regrettably, this was characteristic of the long and dilatory course of the litigation. The master made findings favorable to Trane, including a finding that when Forbes issued its purchase order to Trane, "it intended not to pay the plaintiff for the work which the plaintiff was to perform[8 Mass.App.Ct. 500] pursuant to the purchase order." Forbes filed objections to the master's report, but made no effort to have those objections heard, nor does the record disclose what the objections were. Trane, for its part, never moved for adoption of the report. While the master's report remained in this limbo, Forbes yielded on the contract claim and agreed to pay Trane the full amount of its bill, plus interest.

Trane pressed the c. 93A complaint, which was tried in October of 1977, without a jury since, at that time, an action under c. 93A, § 11, was an equitable action. 1 It is the position of Trane that once the matter became jury-waived, the status of the master's report became governed by Mass.R.Civ.P. 53(e)(2), 365 Mass. 820 (1974), under which the court shall accept the master's findings of fact unless clearly erroneous. If so regarded, the master's report served to equip Trane with the substantial advantage of the master's finding that Forbes hired Trane, never intending to pay for the latter's

Page 152

work. If the master's report is to be regarded as "facts not final," in accordance with the original order of reference, the status of the master's findings is no more than prima facie evidence of the matters found. Prior to the adoption of the Rules of Civil Procedure in 1974, the waiver of a jury trial did not alter the status of a master's (then an auditor's) report. Ott v. Comeau, 297 Mass. 108, 110, 8 N.E.2d 173 (1937). Under the present rules the view appears to be that "if the master has heard the case 'facts not final,' the principles governing a master's report in a jury case control." Smith and Zobel, Rules of Practice §§ 53.11 and 53.12 (1977). So to regard the master's report is a particularly apt result in the instant case, where that report was never adopted and where the parties proceeded without express objection to a full trial (including the testimony [8 Mass.App.Ct. 501] of witnesses and the admission in evidence of many exhibits) of the c. 93A issue.

We turn now to whether Trane's complaint stated a case within the scope of c. 93A. As originally enacted, c. 93A undertook to provide "a more equitable balance in the relationship of consumers 2 to persons conducting business activity." Commonwealth v. DeCotis, 366 Mass. 234, 238, 316 N.E.2d 748, 752 (1974). See also Tober Foreign Motors, Inc. v. Reiter Oldsmobile, Inc., 376 Mass. ---, --- A, 381 N.E.2d 908 (1978); Alperin and Chase, Consumer Rights and Remedies § 123, n.25 (1979). Complaints brought by consumers had to filter through the Attorney General, who alone could bring enforcement actions. Passage of St. 1969, c. 690, inserted a private remedy provision in the statutory scheme. This appears as § 9. For a review of the history of these developments see Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693-700, 322 N.E.2d 768 (1975).

The right to employ the potent weaponry of c. 93A (new substantive rights, multiple damages, counsel fees) was conferred upon businessmen, 3 as opposed to consumers, by St. 1972, c. 614, § 2, which inserted c. 93A, § 11, into the General Laws. It is the position of the defendant Forbes that, in a controversy between businesses, the unfair method of competition or unfair or deceptive act or practice of which the injured party complains must (a) have an anti-competitive effect and (b) involve a plaintiff who is a "consumer" i. e., is a vendee or lessee of goods, services or property. In the instant case, the plaintiff Trane was a purveyor of services, rather than a purchaser.

[8 Mass.App.Ct. 502] A statement...

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281 practice notes
  • Franchi v. New Hampton School, Civil No. 08-cv-395-JL.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • September 18, 2009
    ...the world of commerce.'" Barrows v. Boles, 141 N.H. 382, 390, 687 A.2d 979 (1996) (quoting Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 396 N.E.2d 149, 153 (1979) (construing Massachusetts Consumer Protection NHS's alleged conduct—which the amended complaint specifies as ......
  • Lily Transp. v. Royal Institutional Serv., No. 03-P-1263.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 5, 2005
    ...or deceptive conduct. See Spence v. Boston Edison Co., 390 Mass. 604, 616, 459 N.E.2d 80 (1983); Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 504, 396 N.E.2d 149 (1979); Doliner v. Brown, 21 Mass.App.Ct. 692, 697-698, 489 N.E.2d 1036 (1986); Madan v. Royal Indem. Co., 26 Mass.......
  • Renovator's Supply, Inc. v. Sovereign Bank, No. 06-P-1938.
    • United States
    • Appeals Court of Massachusetts
    • August 26, 2008
    ...Mass. 1, 27, 679 N.E.2d 191, cert. denied, 522 U.S. 1015, 118 S.Ct. 599, 139 L.Ed.2d 488 (1997); Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 504, 396 N.E.2d 149 (1979), S.C., 12 Mass.App.Ct. 990, 429 N.E.2d 50 (1981); Doliner v. Brown, 21 Mass.App.Ct. 692, 698, 489 N.E.2d 103......
  • Schwanbeck v. Federal-Mogul Corp., FEDERAL-MOGUL
    • United States
    • Appeals Court of Massachusetts
    • October 29, 1991
    ...of law. See Mechanics Natl. Bank v. Killeen, 377 Mass. 100, 108-110, 384 N.E.2d 1231 (1979); Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 504, 396 N.E.2d 149 (1979). We think it defeats commercial expectations and foments litigation to impose too delicate a standard of negotia......
  • Request a trial to view additional results
281 cases
  • Franchi v. New Hampton School, Civil No. 08-cv-395-JL.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • September 18, 2009
    ...the world of commerce.'" Barrows v. Boles, 141 N.H. 382, 390, 687 A.2d 979 (1996) (quoting Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 396 N.E.2d 149, 153 (1979) (construing Massachusetts Consumer Protection NHS's alleged conduct—which the amended complaint specifies as ......
  • Lily Transp. v. Royal Institutional Serv., No. 03-P-1263.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 5, 2005
    ...or deceptive conduct. See Spence v. Boston Edison Co., 390 Mass. 604, 616, 459 N.E.2d 80 (1983); Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 504, 396 N.E.2d 149 (1979); Doliner v. Brown, 21 Mass.App.Ct. 692, 697-698, 489 N.E.2d 1036 (1986); Madan v. Royal Indem. Co., 26 Mass.......
  • Renovator's Supply, Inc. v. Sovereign Bank, No. 06-P-1938.
    • United States
    • Appeals Court of Massachusetts
    • August 26, 2008
    ...Mass. 1, 27, 679 N.E.2d 191, cert. denied, 522 U.S. 1015, 118 S.Ct. 599, 139 L.Ed.2d 488 (1997); Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 504, 396 N.E.2d 149 (1979), S.C., 12 Mass.App.Ct. 990, 429 N.E.2d 50 (1981); Doliner v. Brown, 21 Mass.App.Ct. 692, 698, 489 N.E.2d 103......
  • Schwanbeck v. Federal-Mogul Corp., FEDERAL-MOGUL
    • United States
    • Appeals Court of Massachusetts
    • October 29, 1991
    ...of law. See Mechanics Natl. Bank v. Killeen, 377 Mass. 100, 108-110, 384 N.E.2d 1231 (1979); Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 504, 396 N.E.2d 149 (1979). We think it defeats commercial expectations and foments litigation to impose too delicate a standard of negotia......
  • Request a trial to view additional results

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