Petrangelo v. Pollard

• Decision Date: 03 February 1970
• Citation: 255 N.E.2d 342,356 Mass. 696
• Parties: Vincent PETRANGELO v. Robert W. POLLARD et al., trustees.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 342

255 N.E.2d 342

356 Mass. 696

Vincent PETRANGELO v. Robert W. POLLARD et al., trustees.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Dec. 3, 1969.

Decided Feb. 3, 1970.

Louis Kerlinsky, Springfield, for plaintiff.

Robert J. Sherer, Boston (Joseph D. Cronin, Cambridge, with him), for defendants.

Before SPALDING, CUTTER, KIRK, SPIEGEL and QUIRICO, JJ.

QUIRICO, Justice.

This is an action in contract in which the plaintiff seeks to recover $48,394.52 on each of four counts on an account annexed for labor and materials furnished in the construction of a shopping center on land of the defendants. All counts are for the same cause of action.

The jury returned a verdict for the plaintiff for $48,394.52 on each of the four counts. The verdicts were recorded under G.L. c. 231, § 120; and later upon motion the trial judge entered verdicts for the defendants on all counts. The propriety of this action by the judge is the only question before us.

'The test to determine the correctness of the action of the trial judge in ordering the entry of a verdict for a defendant under leave reserved is whether the evidence in its aspect most favorable to the plaintiff could rightly be found to support the contentions essential to the maintenance of his cause of action.' Holton v. Shepard, 291 Mass. 513, 515, 197 N.E. 460, 461. Thurlow v. Welch, 305 Mass. 220, 221, 25 N.E.2d 478; Brightman v. Blanchette, 307 Mass. 584, 589, 30 N.E.2d 864. That is the same test which is applied in the case of a motion for a directed verdict. Berwick & Smith Co. v. Salem Press, Inc., 331 Mass. 196, 117 N.E.2d 825. O'Brien v. Myers, 354 Mass. 131, 132, 235 N.E.2d 780. In the application of this test, 'the plaintiff is entitled to have the evidence considered in its aspect most favorable to it from whatever source it comes.' Interstate Busses Corp. v. McKenna, 329 Mass. 1, 2, 105 N.E.2d 852, 853; Riggs v. Christie, 342 Mass. 402, 403, 173 N.E.2d 610. Pursuant to this rule, the evidence in its aspect most favorable to the plaintiff is stated in the following numbered paragraphs, omitting therefrom whatever tends to contradict that aspect or to support the contentions of the defendants on disputed facts. Adams v. Herbert, 345 Mass. 588, 589, 188 N.E.2d 577.

1. On August 31, 1965, ¹ the parties signed an agreement under which the plaintiff was to furnish all the materials and perform all the work necessary to construct a certain building, parking area and related facilities for a shopping center for the total price of $130,000.

2. The agreement required the defendants to pay to the plaintiff '(o)n or about the 15th and 30th day of each month 100 per cent of the value, based on the Contract prices of labor and materials incorporated in the work as estimated by the owner less the aggregate of previous payments.' It also provided that until fifty per cent of the total price was paid the defendants could deduct five per cent from each payment and retain it until after the completion of the construction. After the work was begun on September 7 the plaintiff submitted the following written requests for payments: (a) a request on October 7 for $11,000 for items of site preparation, excavation, footings and exterior block walls; (b) a request on October 25 for $9,300 for items of brick work, block work, insulation and excavating; and (c) a request on November 29 for $24,526 for items of excavating, masonry painting, plumbing, drainage, mechanical room and stone removal. The total of these requests was $44,826. The defendants paid the plaintiff a total of $23,332.45 on these written requests in the following instalments: $19,500 on November 3, $2,000 on November 17, and $1,832.45 on December 3. On or about October 1 the plaintiff asked the defendant Pollard for a payment and Pollard told him that arrangements for their mortgage had not been completed and that there was no money available at that time. The defendants told the plaintiff the same thing when he submitted each of his written requests on October 7, October 25 and November 29. He kept asking them for money until he received the three payments listed above. ²

3. The defendants made three additional payments without requiring the plaintiff to submit written requests therefor. Each was made directly to a subcontractor of the plaintiff as the result of an oral request of the plaintiff. The payments were the following: $2,500 to the roofing subcontractor on November 24, $16,035 to the structural steel subcontractor on December 3, and $4,567.50 to the electrical subcontractor on December 3, for a total of $23,102.50. In each instance the subcontractor had furnished the materials or done the work for which he was paid. The items covered by these three payments were not included in any of the three written requests for payments submitted by the plaintiff.

4. The plaintiff continued to perform under the agreement after December 3. The work after that date included the paving of the parking area by a subcontractor at an expense of about $11,000. Between December 3 and December 8 the plaintiff asked the defendants for more money to go on with the job and they said they would see what they could do. When the paving of the parking area was substantially completed on December 8, he and his subcontractor spoke to the defendants about payment for that work. They said they would give the subcontractor a check for that work but they never did so.

5. On December 12 the plaintiff told the defendant Pollard that on the fifteenth of that month he would need money to meet payroll and other expenses on the job. The defendant told him that the final arrangements for the mortgage had been completed, but that there would be no money available for him. In fact the mortgage arrangements had not been completed up to the date of the trial of this case. After that talk the plaintiff conferred with his attorney who sent the defendants a letter on December 16 telling them that they had broken the agreement, that the plaintiff was therefore terminating it, and that he would hold them liable for damages. On that date the plaintiff terminated performance under the agreement, and he removed all of his equipment from the premises. He received no payments after December 3.

6. At all times prior to December 16 both the plaintiff's work and the materials furnished under the agreement were approved by the defendants. All of the work was done in good and workanlike manner.

7. The fair and reasonable value of the labor and materials furnished by the plaintiff through December 16, plus fair and reasonable allowances for overhead, insurance and profit, amounted to $94,830.17. The plaintiff received payments from the defendants in the total sum of $46,434.95. ³ The balance due him was $48,394.52.

Thus, on the evidence before them, the jury could find and conclude:

(a) The plaintiff had furnished all of the materials and done all of the work required of him under the agreement until the time he terminated it on December 16; and he had performed in a good and workmanlike manner to that date;

(b) After giving effect to all the payments made by the defendants to the plaintiff and his subcontractors, they still owed him $18,243.55 on his written requests for payments submitted through December 3; ⁴ and they paid him nothing thereafter;

(c) The reason for the defendants' failure to pay the plaintiff the balance of $18,243.55 due him on his written requests on December 3 was their failure to obtain mortgage financing on their project; and such nonpayment was a breach going to the root of the agreement and entitling the plaintiff to terminate it on December 16. National Mach. & Tool Co. v. Standard Shoe Mach. Co., 181 Mass. 275, 279, 63 N.E. 900; Hughes v. Rendle Corp., 271 Mass. 208, 212, 171 N.E. 236; Bucholz v. Green Bros. Co., 272 Mass. 49, 52--53, 172 N.E. 101.

The defendants argue that since their total payments of $46,434.95 were in excess of the $44,826 total of the plaintiff's three written requests for payments, the jury could not find them guilty of a breach for nonpayment. This argument is without merit. The jury could find that the defendants paid only $23,332.45 on account of the written requests, and that the balance of their payments went directly to subcontractors whose work, labor and materials were not included in the written requests. It is not clear that the defendants had the right to require the plaintiff to submit written requests for payments but, if they did, they waived that right as to the payments which they made directly to the plaintiff's subcontractors at his verbal requests. The defendants were not asked to pay twice for the same items. They cannot now insist that the payments which they made directly to subcontractors be applied to the plaintiff's written requests for payment for totally different items.

There was additional evidence from which the jury could find that the plaintiff was legally entitled to terminate the agreement when he did. On December 12 one of the defendants told him that there would be no money available for him on December 15. This came after many requests by him for payments and many statements by the defendants of inability to pay. It followed by several days the unkept promise by defendants to pay the paving subcontractor about $11,000 for work then completed. The jury could find that the combination of those facts entitled the plaintiff to terminate the agreement. He did not have to continue to perform after that and run the...