Rockport Granite Co. v. Plum Island Beach Co.
| Decision Date | 29 February 1924 |
| Citation | 248 Mass. 290 |
| Parties | ROCKPORT GRANITE COMPANY v. PLUM ISLAND BEACH COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 16, 1924.
Present: RUGG, C.
J., DE COURCY PIERCE, CARROLL, & WAIT, JJ.
Contract Construction, What constitutes. Agency, Existence of relation. Estoppel. Evidence, Res inter alios, Competency Books of account. Practice, Civil, Exceptions.
A contractor by a contract under seal with an owner of land agreed to construct a road, the contractor to furnish all necessary labor and materials and the owner agreeing to "pay directly to all parties furnishing materials and equipment necessary in the performance of this contract all proper bills for the same." The contractor made a contract with a granite company to furnish him stone, directing it to send all bills to him, the contractor. This method was followed for some time, when, in the course of a certain conversation between the contractor and the owner, the contractor told the owner thereafter to send checks directly to the granite company and he would instruct the granite company to bill stone directly to the owner. At the trial of an action brought by the granite company against the owner for stone furnished after such conversation, it was held, that
(1) A reasonable interpretation of evidence giving different versions of the conversation was that the owner thereafter should exercise the right which was expressly given to him in the contract with the contractor, namely, "to pay directly to all parties furnishing materials;"
(2) The evidence would not warrant a finding that a direct contractual obligation had arisen between the granite company and the owner superseding the owner's contract under seal with the contractor;
(3) The provision in the contract between the owner and the contractor that the owner should pay directly to the parties furnishing materials could not be enforced by the granite company, which was not a party to the contract;
(4) There was no basis for a claim that the owner was estopped to deny that he had purchased the stone from the granite company, the granite company not having been induced by the owner's conduct to do something which otherwise it would not have done, and to its detriment;
(5) Evidence as to conversations between an officer of the granite company and the contractor, at which the owner was not present, properly was excluded;
(6) In order for a card record kept by the granite company as part of its bookkeeping system, not known by the owner, to have been admissible in evidence, it was necessary for the requirements of G.L.c. 233,
Section 78, to have been complied with;
(7) It was proper to refuse to permit an officer of the plaintiff to answer a question, put to him in direct examination, whether he ever had been told of the terms of the contract under seal between the owner and the contractor, especially in view of the fact that the contractor had told the witness that he had signed a contract to build the road.
CONTRACT for $6,526.87 upon an account annexed for stone chips and broken stone, alleged to have been gold and delivered to the defendant by the plaintiff. Writ dated August 15, 1921.
In the Superior Court, the action was tried before Hammond, J. Material evidence and exceptions by the plaintiff are described in the opinion. By order of the trial judge, a verdict was entered for the defendant. The plaintiff alleged exceptions.
F. H. Tarr, for the plaintiff. O. W. Dealtry, for the defendant.
DE COURCY, J. By a contract under seal, dated May 27, 1920, Thomas Fitzgibbon and his son, Thomas Fitzgibbon, Jr., copartners doing business as the Fitzgibbon Company (referred to therein as the "contractor"), agreed to construct a road on Plum Island for the defendant corporation. Among other things, the contractor was to furnish all the necessary labor and materials, to keep the work under his personal control and take all responsibility therefor; was to be paid fifteen per cent of the cost of all labor employed and, if the total cost should be less than $40,000, as agreed by the contractor, would be paid one half of the difference between the actual cost and that sum. One of its provisions was that "The Owner shall pay directly to all parties furnishing materials and equipment necessary in the performance of this contract all proper bills for the same." Before signing the contract Thomas Fitzgibbon, Jr., the active partner on this work, asked Rogers, the plaintiff's treasurer, for his price on stone; on June 10, in writing he accepted the plaintiff's price of $3.75 per ton, the quantity to be approximately twenty-five hundred tons, and directed the plaintiff to "send all bills on this contract and mail to Fitzgibbon Co." According to the testimony of Fitzgibbon, Jr., he told Rogers on June 10 that he had "signed a contract to build a road at Plum Island," and discussed it with Rogers, "outlining the whole intention of the contract."
Thereafter the plaintiff made shipments of stone, billed to "Fitzgibbon Company;" and these were paid for by said contractor, after sending a corresponding bill to the defendant and receiving payment therefor. It is unnecessary to go into details, as the plaintiff concedes and its treasurer testified that for stone shipped prior to September 20 the defendant was under no obligation to it. In view, however, of the suggestion in the plaintiff's brief, that the written agreement between the defendant and the Fitzgibbons may be interpreted as making the latter the agent of the beach company, it may be said that nothing therein authorized this independent contractor to purchase materials on the credit of the defendant. New England Structural Co. v. James Russell Boiler Works Co. 231 Mass. 274 . See Harding v. Boston, 163 Mass. 14 , 18.
The real claim of the plaintiff is, in substance, that for all shipments made subsequent to September 20, 1920, the defendant became directly liable to the plaintiff by virtue of a new verbal contract, authorizing the plaintiff to charge such shipments to the defendant. The basis for this claim is an alleged conversation at Plum Island between Fitzgibbon, Jr., and Draper, treasurer of the beach company, on some day between September 8 and September 20. it appears that the defendant had sent its check direct to the plaintiff, in payment of the bill of August 17 to the Fitzgibbon Company. Thomas Fitzgibbon, Jr., testified, with reference to this conversation, that he told Draper they "must have thought that the Fitzgibbon Company were getting a rake-off . . when they sent a check directly to the Rockport Granite Company, so he told them to send everything directly from this on to the Rockport Granite Company;" and that he (Fitzg...
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