Russo v. Charles I. Hosmer, Inc.

• Decision Date: 27 October 1942
• Citation: 44 N.E.2d 641,312 Mass. 231
• Parties: RUSSO et al. v. CHARLES I. HOSMER, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 231

44 N.E.2d 641

RUSSO et al.

v.CHARLES I. HOSMER, Inc.

Supreme Judicial Court of Massachusetts, Franklin.

Oct. 27, 1942.

Action by Nicholas Russo and others against Charles I. Hosmer, Inc., to recover on a contract in quantum meruit and for money had and received. From an order for plaintiffs, defendant appeals.

Reversed.Appeal from Superior Court, Franklin County; Leary, Judge.

Before FIELD, C. J., and QUA, DOLAN, COX, and RONAN, JJ.

J. T. Bartlett and H. H. Flower, both of Greenfield, for plaintiffs.

C. Fairhurst, of Greenfield, for defendant.

RONAN, Justice.

The defendant, hereafter called Hosmer, entered into a contract with the Commonwealth to repair a section of a State highway which had been damaged by the hurricane and flood of September, 1938. Hosmer by a contract in writing sublet to the plaintiffs, hereafter called Russo, a portion of the work, which consisted of the erection of highway guard railing at specified prices for certain types of rails. The first count of the declaration is on the written contract. The second count is upon a quantum meruit for materials furnished and labor performed. The third count is for money had and received for extras. The fourth count is also for money had and received-the amount that Hosmer received from the Commonwealth for the work done by Russo. An auditor, whose findings of fact were to be final, has found that Russo had erected a certain number of feet of a particular type of fence, together with sixty-seven anchors for fastening the ends of the two cables that pass through the cement posts and comprise this type of fence, and awarded Russo the balance due after crediting him at the contract prices for this work and deducting the payments made on account by Hosmer. He also made alternative findings, one of which was an extra amounting to $41.20 for removal of ledge. The judge made a finding for Russo in an amount which would seem to indicate that it was based upon the said balance and the said extra together with interest. The defendant appealed from a finding for the plaintiffs.

The report of the auditor constitutes a case stated, and an appeal from the finding for the plaintiffs, which we consider as an order for judgment, properly brings the case here. Pesce v. Brecher, 302, Mass. 211, 19 N.E.2d 36;Lawrence v. Old Silver Beach, Inc., 303 Mass. 377, 21 N.E.2d 956;Old Mill Point Club, Inc., v. Paine, 308 Mass. 505, 33 N.E.2d 257.

Russo cannot recover upon the first count upon the written contract without showing complete performance in strict accordance with its terms, Searls v. Loring, 275 Mass. 403, 176 N.E. 212;Zarthar v. Saliba, 282 Mass. 558, 185 N.E. 367, and he cannot maintain the second count for quantum meruit for the fair and reasonable value of the materials furnished and labor supplied in executing the written contract without showing that he has substantially performed the contract and also that he attempted in good faith fully to perform the contract. An intentional departure from the terms of the contract without justification or excuse in matters other than those so trifling as to be properly regarded as falling within the rule of de minimis will bar all recovery for materials supplied and work performed which were required for the performance of the contract. Dodge v. Kimball, 203 Mass. 364, 89 N.E. 542,133 Am.St.Rep. 302;Smedley v. Walden, 246 Mass. 393, 141 N.E. 281;Divito v. Uto, 253 Mass. 239, 148 N.E. 456;Hub Construction Co. v. Dudley Wood Works Co., 274 Mass. 493, 175 N.E. 48;Glazer v. Schwartz, 276 Mass. 54, 176 N.E. 613;Andre v. Maguire, 305 Mass. 515, 26 N.E.2d 347.

The auditor found that the construction of the highway guard rail or fence required the installation of fifteen hundred five posts made of concrete reinforced by four rods, and that the posts that Russo manufactured and supplied contained only two or three steel rods. Twelve of these posts were tested after they had been erected by Russo and were found to contain two rods. They were replaced by Russo by posts that were reinforced by four rods. Neither the defendant nor the department of public works had any actual knowledge that the remaining posts had less than four rods each. One of the purposes of the highway guard rails was to furnish barriers sufficiently strong to prevent automobiles from being precipitated from the highway down the retaining slope to the lower land which adjoins the highway. The stability of such barriers depended entirely upon the strength of the posts. And the strength of the posts in turn depended upon the extent to which they were reënforced by the rods. The omission of one or two rods from each of these posts was a material deviation from the terms of the contract. The findings of the auditor show no excuse nor justification for the erection by Russo of such posts. There is no finding that Russo made any honest endeavor to carry out the contract in this respect. Such findings as were made so far as they were pertinent to this matter would indicate the want of good faith upon the part of Russo. There was error in ordering judgment for Russo for the balance alleged to be due him under the contract. Burke v. Coyne, 188 Mass. 401, 74 N.E. 942;Hennessey v. Preston, 219 Mass. 61, 106 N.E. 570;Lynch v. Culhane, 237 Mass. 172, 129 N.E. 717;Divito v. Uto, 253 Mass....