M. Ahern Co. v. John Bowen Co.

• Decision Date: 05 April 1956
• Citation: M. Ahern Co. v. John Bowen Co., 133 N.E.2d 484, 334 Mass. 36 (Mass. 1956)
• Parties: M. AHERN CO. v. JOHN BOWEN CO., Inc.
• Court: Supreme Judicial Court of Massachusetts

Page 484

133 N.E.2d 484

334 Mass. 36

M. AHERN CO. v. JOHN BOWEN CO., Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 1956.

Decided April 5, 1956.

James M. Graham, Boston (Edward U. Lee, Boston, with him), for plaintiff.

Robert G. Dodge, Boston (Robert F. Bradford and Herbert P. Wilkins, Boston, with him), for defendant.

Before QUA, C. J., and RONAN, COUNIHAN and WHITTEMORE, JJ.

WHITTEMORE, Justice.

This is an action of contract to recover for labor and materials furnished by the plaintiff as a subcontractor, to the defendant as general contractor, in connection with the construction in Boston, by the Commonwealth, of the Chronic Disease Hospital and Nurses' Home. The case was tried in the Superior Court without a jury and the judge found for the plaintiff. The defendant excepted (1) to the refusal of the trial judge to rule that upon all the evidence the defendant was entitled to judgment, (2) to the finding for the plaintiff, and (3) to the exclusion of certain evidence. There was no error.

The essential facts are not in dispute. The labor and materials had been furnished under a partially performed contract, the further performance of which had become impossible because of the decision of this court in Gifford v. Commissioner of Public Health, 328 Mass. 608, 105 N.E.2d 476, declaring void the underlying general contract between the defendant and the Commonwealth. The amount claimed due, apart from interest, was the difference between the value of the materials and labor furnished and the sums paid by the defendant to the plaintiff under the terms of the contract prior to the Gifford decision.

The subject contract provided in part for the plaintiff's 'furnishing all labor, material, equipment, insurance, etc., to do all plumbing as called for in * * * [stated parts of the general contract and contract documents] all in accordance with the plans and specifications * * * and perform all work to the satisfaction of the governing authorities and John Bowen Co., Inc. [the defendant]'; also that 'You as subcontractor, further agree to be bound to us, the general contractor, by the terms of the special form of construction contract for projects under jurisdiction of Mass. Public Building Commission, the general conditions, drawings and specifications, and to assume toward us all the obligations and responsibilities that we, by those documents, assume toward the owner. * * * Terms of payment are to be the same as our terms of payment with the owner, all as outlined under * * * [the relevant part of the construction contract]. It is understood * * * that we [the defendant] accept no clause, reservation, or agreement other than those herein mentioned.'

Prior to learning that it had no contract under which it could continue work, the defendant had been paid by the Commonwealth the amounts called for in three requisitions, less ten per cent as provided in the contract, and the defendant had paid the plaintiff the amount allowed in these requisitions for plumbing work less ten per cent. The amount found due represents, as to principal, the retained ten per cent plus additional work done and materials furnished, not covered in the honored requisitions.

The evidence to the exclusion of which the defendant excepted consisted of certain papers in two cross actions between the defendant here and the Commonwealth. The defendant offered to show that these cross actions had been tried together, and that the judge had ruled that neither party could recover from the other, that is, the defendant could not recover from the Commonwealth for the fair value of materials and labor furnished up to the time work ceased, including materials and labor furnished by the plaintiff here, and the Commonwealth could not recover the amounts paid to the defendant on the honored requisitions; also that following the findings by the judge there was 'in each case * * * an agreement * * * of the parties to accept his decision' evidenced by the filing of the agreements for judgment.

It is plain that the defendant does not owe the plaintiff any sum under the contract and that the plaintiff after the Gifford decision could have done nothing to mature an obligation of the defendant under its terms. But the absence of an express provision in the contract to cover the unexpected contingency has not deterred this court or other American courts from giving recovery in cases of excusable impossibility for such performance as has been received. Butterfield v. Byron, 153 Mass. 517, 521, 522, 27 N.E. 667, 12 L.R.A. 571; Angus v. Scully, 176 Mass. 357, 358, 57 N.E. 674, 49 L.R.A. 562; Young v. Chicopee, 186 Mass. 518, 72 N.E. 63; Herbert v. Dewey, 191 Mass. 403, 411, 77 N.E. 822; Eastern Expanded Metal Co. v. Webb Granite & Construction Co., 195 Mass. 356, 362-363, 81 N.E. 251; Vickery v. Ritchie, 202 Mass. 247, 250-251, 88 N.E. 835, 26 L.R.A.,N.S., 810; Williston, Contracts (Rev.Ed.) §§ 1975-1977. Restatement: Contracts, § 468.

These decisions are not, as the defendant argues, based in the ultimate analysis on the principle of unjust enrichment which underlies restitution cases wherein recovery is limited to benefits received. Restatement: Contracts, § 348; Restatement: Restitution, § 155. Our decisions have spoken of 'an implication that what was furnished was to be paid for', Vickery v. Ritchie, 202 Mass. 247, 250-251, 88 N.E. 835, 836, 26 L.R.A.,N.S., 810, or have indulged the fiction of an implied contract that the subject matter will continue to exist so that even though the defendant is without fault in fact he is to be regarded as in default and hence liable to pay. Young v. Chicopee, 186 Mass. 518, 72 N.E. 63. In commenting upon the 'benefit' theory Williston (Contracts [Rev.Ed.] § 1977, pages 5553-5554) says, 'It is sometimes said that the defendant is liable for the benefit which he has received, but unless the word 'benefit' is given a meaning wider than is natural, the statement is inadequate. In the first place, the word 'benefit' suggests that the matter is to be examined as it exists after the impossibility has supervened; but * * * the American law seems clear that where the defendant has received part performance regarded as valuable under the contract between the parties, the fact that this value has been destroyed by the very circumstances which make full performance of the contract...