M. L. Shalloo, Inc. v. Ricciardi & Sons Const., Inc.
Decision Date | 08 March 1965 |
Citation | 205 N.E.2d 239,348 Mass. 682 |
Parties | M. L. SHALLOO, INC. v. RICCIARDI AND SONS CONSTRUCTION, INC., et al. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Sally A. Corwin, Boston (Joseph M. Corwin, Boston, with her) for plaintiff.
Robert V. Mulkern, Worcester, for Ricciard and Sons Construction, Inc.
Morton C. Jaquith, Worcester, for the Southern New England Conference Assoc. of Seventh Day Adventists, submitted briefs.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and SPIEGEL, JJ.
The plaintiff (Shalloo) brings this bill to reach and apply funds of the defendant, Ricciardi and Sons Construction, Inc. (Construction refers to the corporation as distinguished from Ricciardi individually), in the hands of Southern New England Conference Association of Seventh Day Adventists (the Adventists) and of a bank. Shalloo seeks to recover (a) amounts alleged to be owed to it upon a subcontract with Construction, which was prime contractor upon certain work ordered by the Adventists, and (b) for extra work.
The case was referred to a master, whose report was confirmed. A final decree was entered that Construction was indebted to Shalloo in the sum of $3,319.72 1 (with interest and costs), which was to be paid to Shalloo by the Adventists from funds retained under the prime contract. Shalloo appealed. The facts are stated on the basis of the master's report.
Construction agreed by a prime contract to perform all work for the Adventists to develop a site for a school, as shown by certain plans and specifications. Ricciardi, a representative of Construction, Shalloo's president, and Shalloo's superintendent met at the site. Ricciardi furnished Shalloo 'the contract documents, specifications, a grading plan and a test boring report [included in the specifications] relating to the site.' The boring report 'showed no water content within the contract area' (see fn. 2, infra). 'Ricciardi told Shalloo that * * * [Construction] would do all the engineering * * * with reference to the setting of stakes in connection with * * * work Shalloo was to do.' Shalloo thereafter executed a subcontract to do certain of the work. It provided, among other things, (a) that '[u]pon prepared subgrade, loam shall be * * * spread * * * to the lines and grades and dimensions shown on the [p]lan,' and (b), in par. Fifth, 'No extra work * * * under this contract will be recognized or paid for, unless agreed to in writing before the work is done * * *.'
Shalloo completed all but three or four per cent of the subgranding before suspending work on December 9, 1960, for the winter. Ricciardi was at the site every day. On May 22, 1961, Shalloo resumed subgrading and spreading loam. During the subgrading, Shalloo's employees stripped loam and piled it as directed by the architect or Ricciardi. 'When an area was stripped the engineers' then
After May 22, 1961, a dispute arose concerning whether the subgrade preparation had been properly done. This culminated in Shalloo's leaving the job. Construction retained others to do the work left undone. Despite this the master found that, although Shalloo 'did not fully perform its contract, there is a balance due it on the contract for work that it did do.' Shalloo's right to recover this balance (see fn. 1) is no longer open to dispute for Construction took no appeal from the final decree and is entitled to no more favorable decree. See Turgeon v. Turgeon, 330 Mass. 402, 409, 113 N.E.2d 821.
par. Fifth of the subcontract 'requiring an agreement in writing for any extra work,' but 'Ricciardi knew of such extra work * * * either by * * * his request for it or his presence on the job site and knowing from observation * * * and making no objection.'
The master made findings with respect to the nature and value of this extra work as follows: (A) extra work extending the limits of the football field beyond those shown in the grading plan, $806.60; (B) similar extra work on the baseball field, $397.70; (C) extension of the southwest corner of the site, $746.60; (D) revision of subgrading of a perimeter road, $930; and (E) extra work caused by the wet condition on the slopes of the site, $10,200. 2 The total of these items was $13,080.90. The issues presented for decision all relate to this extra work.
1. With respect to the first four items of extra work, the subsidiary findings fully support the master's conclusion that the items 'were not within the written contract.' The items were work in addition to those shown on a plan or plans in accordance with which Shalloo was working. The situation with respect to the extra work because of the wet area is discussed separately below.
Paragraph Fifth of the subcontract 'obviously could not prevent oral contracts for extra work, for the parties had power to waive or alter that provision orally at any time.' See Zarthar v. Saliba, 282 Mass. 558, 560, 185 N.E. 367, 368. See also Bartlett v. Stanchfield, 148 Mass. 394, 396, 19 N.E. 549, 2 L.R.A. 625; Vitti v. Garabedian, 264 Mass. 1, 6, 161 N.E. 607; Cueroni v. Coburnville Garage, Inc., 315 Mass. 135, 138-139, 52 N.E.2d 16. Cf. Stuart v. City of Cambridge, 125 Mass. 102, 109-110 (). The master's findings establish that either the Adventist's architect or Ricciardi directed Shalloo to do each of the first four items of the extra work and that 'Ricciardi knew of such extra work.' From these findings, we think that waiver of par. Fifth, if it is applicable at all to work not covered by the subcontract (see Howard v. Harvard Congregational Soc., 223 Mass. 562, 565, 112 N.E. 233; Farm-Rite Implement Co. v. Fenestra, Inc., 340 Mass. 276, 287, 163 N.E.2d 285), should be inferred.
The subcontract, although somewhat confusing in form, we interpret as calling for the work to be done 'according to the plans and specifications * * * of * * * [the] [a]rchitect, and to * * * [his] full satisfaction.' 3 In connection with this provision also must be read the provisions of the prime contract set out in the margin. 4 We take that contract to have been one of the contract documents which the master found was shown to Shalloo when the subcontract was being made. Shalloo was entitled to rely on its provisions. See Vappi & Co. Inc. v. Sullivan, 331 Mass. 463, 466-467, 120 N.E.2d 203. In the circumstances, the prime contract and the accompanying documents not only set limits on the work to be done under the subcontract but defined for Shalloo the authority of the architect and of Construction, represented by Ricciardi. Shalloo should have been allowed to recover for the first four items of extra work.
2. As has been noted, the test boring report, which was not made a part of the master's report, 5 was given by Ricciardi to Shalloo during the subcontract negotiation. The master found (fn. 2) that the 'boring report showed no water content within the contract area' and that the wet condition was not 'set forth in the * * * [r]eport.' 6 The master's report gives no indication of any warning to Shalloo not to rely on the report. Cf. Arthur A. Johnson Corp. v. Commonwealth, 318 Mass. 88, 93, 60 N.E.2d 364; Benjamin Foster Co. v. Commonwealth, 318 Mass. 190, 192, 61 N.E.2d 147, 166 A.L.R. 925. The provisions of the short subcontract in no manner excluded Shalloo's reliance on the plans and specifications and test boring report (which the master found was 'included in the [s]pecifications'). Cf. Long v. Inhabitants of Athol, 196 Mass. 497, 502-503, 82 N.E. 665, 17 L.R.A.,N.S., 96 (); Kennedy v. City of Boston, 286 Mass. 148, 155-156, 189 N.E. 809 ( ). Cf. also Stuart v. City of Cambridge, 125 Mass. 102, 108-109 ( ). Indeed, the subcontract essectially incorporated the plans and specifications by reference, so that the subcontract in effect contained whatever representation as to subsoil conditions was made by the boring report. Thus if Shalloo was reasonably expected to rely and did rely upon that report, and if the report, together with other statements made in hehalf of Construction, did represent the site to be one which would normally by dry, then the wet condition actually found on the site might constitute a breach of a warranty for which Shalloo could recover. See Hollerbach v. United States, 233 U.S. 165, 169-172, 34 S.Ct. 553, 58 L.Ed. 898 ( ); Christie v. United States, 237 U.S. 234, 239-242, 35 S.Ct. 565, 59 L.Ed. 933; United States v. Spearin, 248 U.S. 132, 136-137, 39 S.Ct. 59, 63 L.Ed. 166; United States v. L. R. & J. A. Smith, 256 U.S. 11, 16-17, 41 S.Ct. 413, 65 L.Ed. 808; Pitt Constr. Co. v. City of Alliance, 12 F.2d 28, 30-32 (6th Cir.); State v. Hartford Acc. & Indem. Co., 138 Conn. 334, 338-341, 84 A.2d 579 ( ); Faber v. New York, 222 N.Y. 255, 259-261, 118 N.E. 609; Depot Constr. Corp. v. State, 41 Misc.2d 764, 246 N.Y.S.2d 527 (Ct.Cl.). 7
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