Staples Coal Co. v. Ucello
| Decision Date | 30 January 1956 |
| Citation | 131 N.E.2d 763,333 Mass. 464 |
| Parties | STAPLES COAL COMPANY v. John UCELLO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Joseph C. Robbins, Boston, for plaintiff.
Joseph G. Kelly, Boston, for defendant.
Before QUA, C. J., and RONAN, WILKINS, WILLIAMS and WHITTEMORE, JJ.
In this action the plaintiff seeks to recover the amount due under a written contract for two oil burners and other heating equipment installed by it for the defendant in the city hall of Revere. In count 1 of the declaration the plaintiff alleges performance of the contract, a copy of which is annexed, and of additional work under an agreed 'oral modification' of its terms. Count 2 is on an account annexed. The defendant's answer is in substance a general denial. The case was referred to an auditor whose findings of fact were to be final.
He found that on October 16, 1950, the defendant contracted with the city of Revere to install two boilers in the city hall and connect them with its heating system and on December 7 signed the contract with the plaintiff. This contract provided for supplying and installing the two oil burners and other equipment, which was a part of the work for which the defendant had contracted with the city. The plaintiff's contract called for payment to it by the defendant of $9,000. It contained a clause that it constituted 'the entire agreement between the company [the plaintiff] and the purchaser [the defendant], and no provision of this contract may be altered or waived except by a written instrument duly executed by the parties hereto.' There were later oral modifications of the contract whereby the parties agreed that the defendant should be credited with $500 for burying the storage tank, and with $100 for installing certain pipes, and that the plaintiff should be paid an extra $75 for installing new gas supply lines. Each party performed its part of this additional work. The installation of the equipment was done for the plaintiff by D. J. Robbie Company, Inc. Donald J. Robbie of that company was present when the contract was signed and the defendant knew that it was to install the equipment.
Although it was provided that the red brick bases for the boiler settings were to be installed by Plibrico Company the plaintiff had this work done by McIver Company. The defendant first learned of this change when he saw 'McIver's men working on the job' but made no objection after learning of that fact.
The auditor further found that the plaintiff was entitled to $100 as the fair value of its work in the necessary tearing down and replacing of brick work due to an error in the original plan. He credited the defendant with a payment of $2,000 which had been made and found for the plaintiff in the amount of $6,635, the amount set forth in the account annexed to count 2 of the declaration.
There were other findings 'that the plaintiff's employees engaged on this job were not, at the time of this work, members of any labor union and were paid the minimum wage rates contained in Article 3 of the contract, which rates were below the prevailing union wages,' and that the defendant has been paid in full by the city of Revere.
Twenty-six objections of the defendant to the findings and the failure of the auditor to make additional findings were appended to the report. Rules 89 and 90 of the Superior Court 1954. They had no standing except as a foundation for a motion to recommit the report for the correction of errors. Lunn & Sweet Co. v. Wolfman, 268 Mass. 345, 349, 167 N.E. 641. Howland v. Stowe, 290 Mass. 142, 145, 194 N.E. 888. Gordon v. City of Medford, 331 Mass. 119, 124, 117 N.E.2d 284.
The defendant filed two motions to recommit. In the first motion which contained no reference to the filed objections he set forth thirty-two grounds for recommittal based in the main on alleged inadequacy of the findings. In the second he moved that the auditor be instructed to report certain exhibits which were introduced at the trial, namely, the contract between the plaintiff and the defendant, the contract between the defendant and the city of Revere, and a number of invoices from the Robbie company to the plaintiff. Exceptions were claimed by him to the denial of these motions and to the allowance of a motion by the plaintiff for judgment in accordance with the auditor's report.
We think that in denying the motions to recommit there was no abuse of the discretion which, in respect to...
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