S. D. Shaw & Sons, Inc. v. Joseph Rugo, Inc.

• Decision Date: 14 February 1962
• Parties: S. D. SHAW & SONS, INC. v. JOSEPH RUGO, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 446

180 N.E.2d 446

343 Mass. 635

S. D. SHAW & SONS, INC. v. JOSEPH RUGO, INC.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 8, 1961.

Decided Feb. 14, 1962.

Irvin M. Davis, Wellesley Hills (Richard H. Davis, Scituate, with him), for plaintiff.

Bernard S. Kaplan, Boston (Harry P. Haveles, Boston, with him), for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE, and SPIEGEL, JJ.

SPIEGEL, Justice.

This is a suit for a declaratory decree under G.L. c. 231A. The plaintiff, S. D. Shaw & Sons, Inc. (hereinafter called Shaw), under a written subcontract with the defendant, Joseph Rugo, Inc. (hereinafter called Rugo), was to perform certain work prescribed by the specifications of a general contract entered into between Rugo and the Massachusetts Port Authority. Shaw seeks a determination of the rights and duties of the parties regarding compliance with certain provisions of the specifications. ¹

The case was referred to a master who filed a report in which he made findings of fact '[u]pon all the evidence' and reported a question of law. The evidence was not reported. Shaw filed eighteen objections to the master's report which under Rule 90 of the Superior Court (1954) are treated as exceptions.

Shaw filed a motion to recomit the master's report and Rugo moved to overrule Shaw's exceptions and to confirm the report of the master. The judge denied Shaw's motion and allowed the motion of Rugo. An interlocutory decree was entered overruling Shaw's exceptions and confirming the master's report. A final decree was entered in favor of Rugo. Shaw appealed from the interlocutory and final decrees.

Rugo is the general contractor for the construction of the Eastern Airline hangar at the Logan Airport, East Boston, Massachusetts. Shaw entered into a subcontract with Rugo for the performance of all heating and ventilating work as specified in § 24 of the specifications to the general contract. As part of its work, Shaw was required to place two pipes carrying heating lines in a trench prepared by Rugo and to cover the pipes with insulating material. The specifications applying to 'Heating and Ventilating' provide in part at § 24-42.14 as follows: 'Trenches shall be filled and tamped by hand at least 12-in. above insulation, above that machines or hand backfill shall be used.' Section 24-03 describes work not included under 'Heating and Ventilating' and states in part: '1. Excavation and Backfilling Section 2.' Section 2 of the specifications, entitled 'Preparation of Site, Earthwork, and Cleanup,' provides in part at § 2-02 as follows: '1. The scope of work under this section, without limiting the generality thereof, consists of furnishing all labor, equipment and materials, and performing all operations in connection with [the] site preparation, excavation, backfill, fill, grading, trenching for utilities * * * in strict accordance with this section of the specifications and the applicable drawings.'

The subcontract between Rugo and Shaw also contains the following provision: 'The Sub-Contractor agrees * * * to be bound by the decision of the Contractor as to the construction and meaning of the plans and Specifications, such decision to be final.' By letter of June 27, 1960, Rugo informed Shaw that under the specifications it was the responsibility of the subcontractor to fill the trench at least twelve inches above the insulation.

The master found that '* * * the work of backfill and fill, insofar as the subject matter is covered by Section 2 of the Specifications, is not included in the work to be done by the subcontractor for heating and ventilating under Section 24 of said Specifications'; that, '[i]nsofar as it presents a question of fact, * * * the question of whose responsibility and obligation it is to do the work of filling the first twelve (12) inches above the insulation, involves the construction and meaning of the Specifications of the General Contract'; that '* * * both Shaw and Rugo felt that there was an honest dispute upon this point on the construction and meaning of the Specifications, and their respective attitudes have at all times been reasonable'; and that, '[i]nsofar as it involves a question of fact, * * * the construction and meaning placed upon the specifications by Rugo as set forth in its * * * letter of June 27, 1960, is reasonable.'

The final decree provides in material part as follows: '4. That the plaintiff, its agents or servants, are bound to fill and tamp by hand at least twelve (12) inches above insulation as set forth in section 24-42.14 of the general specifications. 5. That the section of the specifications designated 'section 2' has no application to the plaintiff. 6. That in addition to the subcontract between plaintiff and defendant, and in addition to section 24 of the specifications, the plaintiff, its agents or servants, are bound by their filed sub bid, designating section 24 of the specifications. 7. That the defendant, its agents or servants, have correctly interpreted article 2 of the subcontract between plaintiff and defendant whereby the defendant has the authority to make a final decision as to the construction and meaning of the plans and specifications wherein the defendant has so reasonably interpreted the specifications, that the plaintiff is required, under section 24-42.14 of the said specifications, to fill and tamp by hand at least twelve inches above insulation.'

A number of Shaw's objections are repetitious. Many relate to the failure of the master to include in or attach to his report certain exhibits. Others request the master to make additional findings. None of the objections, except those relating to the exclusion of evidence, raises any question of law apparent on the face of the report, and they are, therefore, without standing. Minot v. Minot, 319 Mass. 253, 258-259, 66 N.E.2d 5; Shaw v. United Cape Cod Cranberry Co., 332 Mass. 675, 678, 127 N.E.2d 296; New England Overall Co., Inc. v. Woltmann, Mass., 176 N.E.2d 193. ²

The objections concerning the exclusion of certain testimony by one Kimball, called as a witness by Shaw, involve the question of law reported by the master.

Kimball was the senior engineer for the firm which...