Town of Saugus v. B. Perini & Sons, Inc.

• Decision Date: 15 March 1940
• Citation: 305 Mass. 403,26 N.E.2d 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: TOWN OF SAUGUS v. B. PERINI & SONS, Inc.

305 Mass. 403

26 N.E.2d 1

TOWN OF SAUGUS

v.B. PERINI & SONS, Inc.

Supreme Judicial Court of Massachusetts, Essex.

March 15, 1940.

Action by the Town of Saugus against B. Perini & Sons, Inc., to enjoin the excavation of sand and gravel from defendant's premises. From the final decree dismissing the suit the plaintiff appeals.

Affirmed.Appeal from Supreme Court, Essex County; Hurley, Judge.

L. F. Davis, of Lynn, for plaintiff.

A. L. Taylor and D. C. Kadra, both of Boston, for defendant.

RONAN, Justice.

The town complains that the defendant, in violation of the zoning by-law, has excavated and removed for the purposes of sale large quantities of sod, loam, sand, gravel and stone from the defendant's premises in Saugus, and prays for an injunction to restrain further excavation and to restrain the defendant from maintaining a pit or hole that has resulted from the excavations heretofore made and which is filled with stagnant water. The case was referred to a master whose report was confirmed. The town appealed from a final decree which recited that no excavation had been made since December 13, 1937, and dismissed the bill without prejudice to the right of the town to bring a bill whenever it appears that the defendant intends to make any further excavations.

The defendant entered into a written contract with the Commonwealth for the reconstruction of a section, a little less than four and seven tenths miles in length, of a state highway located in the towns of Lynnfield and Saugus and known as the Newburyport Turnpike. The compensation to be paid the defendant was fixed at a certain rate per unit of measurement on certain portions of the finished work, and in other instances was based upon a unit quantity rate for various materials used and employed in the prosecution of the work. The contract contained about ninety items aggregating $1,349,895.25, one of which was for 232,200 cubic yards of gravel, complete in place at 57 cents per cubic yard. The defendant agreed to furnish all equipment, machinery, tools and labor, ‘to furnish and deliver all materials required to be furnished and delivered,’ and to do and perform all work required to be done in conformity with the contract. The material that the defendant excavated from the premises in question was used by it in performing this road construction contract.

Section 17A of the zoning by-law forbids the removal for sale of sod, loam, sand, gravel or stone from single or general residence districts unless special permission is granted by the selectmen in accordance with section 17, which provided that upon a written application for such permission, and after giving notice as therein provided, the selectmen shall hold a public hearing and may, subject to certain restrictions, grant permission with such conditions as will protect the community. The defendant's premises are located in a single residence district described in the zoning by-law. This by-law is to be administered by the building inspector. He was authorized to issue an occupancy permit for the use of buildings, structures and premises that comply with the by-law.

The furnishing of the gravel for highway purposes must be considered together with the entire transaction of which it was a part. The material was required for the reconstruction of the road and when put in position on the site became a part of the finished highway. The Commonwealth was not interested in the purchase of material. Its aim was to secure a highway constructed in accordance with the contract. The defendant had undertaken to supply the materials in order to perform the work and to turn over to the Commonwealth a section of the highway reconstructed in compliance with the contract. The contract required much more than a mere aggregation or collection of the materials enumerated in the quantities specified. Some of the materials had to be fabricated and prepared before they could be incorporated into the road. Some of the material lost its identity by being mixed with other materials. All of the material was to be wrought into a single completed section of highway. The essence of the transaction was not the purchase and sale of personal property. If the contract were oral it would be valid in so far as any defence based on the statute of frauds could be interposed. While the amount of labor involved in the performance of the work is not specifically disclosed, it is plain that the contract is one for work and labor rather than for the purchase and sale of personal property. Mixer v. Howarth, 21 Pick. 205,32 Am.Dec. 256;Goddard v. Binney, 115 Mass. 450, 15 Am.Rep. 112;New England Cabinet Works v. Morris, 226 Mass. 246, 115 N.E. 315;Pope v. Brooks, 249 Mass. 381, 144 N.E. 214;M. K. Smith Corp. v. Ellis, 257 Mass. 269, 153 N.E. 548;Walstrom v. Oliver-Watts Construction Co., 161 Ala. 608, 50 So. 46;Frederick Raff Co. v. Murphy, 110 Conn. 234, 147 A 709;Underfeed Stoker Co. v. Detroit Salt Co., 135 Mich. 431, 97 N.W. 959;Chandler v. De Graff, 22 Minn. 471;Brown & Haywood Co. v. Wunder, 64 Minn. 450, 67 N.W. 357,32 L.R.A. 593;Pitkin v. Noyes, 48 N.H. 294, 97 Am.Dec. 615, 2 Am.Rep. 218;York Heating & Ventilating Co. v. Flannery, 87 Pa.Super. 19;Scales v. Wiley, 68 Vt. 39, 33 A. 771.

Whether a contractor is a vendor of the materials he supplies for the completion of a public structure has recently been decided in determining whether the contractor was liable for a sales tax upon the value of the materials so supplied. In St. Louis v. Smith, 342 Mo. 317, 114 S.W.2d 1017, an attempt was made to impose a sales tax on the city for the value of materials furnished to it under three contracts, one for the erection of a hospital and the other two for the construction of a sewer and of a street paving, on the ground that it was the vendee of these materials and so liable for the tax which, in this instance, was by its terms imposed upon the vendee who purchases for his own use or consumption. The court pointed out that it was necessary for the contractor to supply the materials in order to perform his contracts and that it could not be said that the contractor sold such materials to the city or that the latter was a purchaser of such materials. To the same effect are Herlihy Mid-Continent Co. v. Nudelman, 367 Ill. 600, 12 N.E.2d 638, 115 A.L.R. 485;State v. J. Watts Kearny & Sons, 181 La. 554, 160 So. 77;State v. Christhilf, 170 Md. 586, 185 A. 456;Atlas Supply Co. v. Maxwell, 212 N.C. 624, 194 S.E. 117;Albuquerque Lumber Co. v. Bureau of Revenue of New Mexico, 42 N.M. 58, 75 P.2d 334; and Commonwealth v. Gormly, 173 Pa. 586, 34 A. 282. Compare Moore v. Pleasant Hasler Construction Co., 50 Ariz. 317, 72 P.2d 573;Wiseman v. Gillioz, 192 Ark. 950, 96 S.W.2d 459.

In the case at bar the fact that there was a specific price for the gravel did not make the contract a divisible one. The price was not for the gravel furnished alone but for the gravel supplied ‘complete in place.’ The fixing of the price of this commodity was the method adopted in conjunction with fixing the unit prices for other materials and for finished portions of the work to determine the total compensation to which the defendant would be entitled upon the completion of the work. The omission of the gravel would, as a practical matter, render the work impossible. The computation furnished by the contract for the determination of the amounts to be paid for the completion of the work did not make the contract a series of separate contracts each for the purchase and sale of a particular commodity. Fullam v. Wright & Colton Wire Cloth Co., 196 Mass. 474, 82 N.E. 711;Cumberland Glass Mfg. Co. v. Wheaton, 208 Mass. 425, 94 N.E. 803;Bullard v. Eames, 219 Mass. 49, 106 N.E. 584;Hughes v. Rendle Corp., 271 Mass. 208, 171 N.E. 236. The principal contention of the plaintiff that the defendant violated section 17A fails.

The defendant, however, had never received any occupancy permit authorizing the use of its land for the excavation and the removal of sand, stone and gravel. The defendant's premises were located in a single residence district where the use of the land was authorized for only certain designated purposes which did not include the removal and carrying away of the sand, stone and gravel. The by-law, section 4, expressly provided that ‘no land, building, structure, or parts thereof shall be used, except for one or more of’ the designated purposes. This was a prohibition against the removal of soil from the premises for any purpose, excepting that the removal for the purposes of sale was permitted if the provisions of section 17A were observed and an occupancy permit was secured. It is plain that the defendant did not come within the requirements of section 17A, but that the excavation and the transportation of the soil from its land were a violation of section 4 as they were a use not permitted by this section. Lexington Newton, Mass., 18 N.E.2d 365;Lexington v. Menotomy Trust Co., Mass., 23 N.E.2d 559.

The bill contains a prayer for an injunction restraining further excavation and removal of the soil, and maintenance of the pond caused by the excavation, which we construe as the equivalent of a prayer that the excavation be refilled. Edgecomb v....