De Vito v. Uto

• Decision Date: 07 July 1925
• Parties: DE VITO v. UTO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 239

148 N.E. 456

DE VITO

v.UTO.^*

Supreme Judicial Court of Massachusetts, Plymouth.

July 7, 1925.

Exceptions from Superior Court, Plymouth County; F. J. McLeod, Judge.

Action of contract against Nazzareno De Vito against Ralph Uto to recover balance due on written building contract, afterwards modified by oral agreement. Finding for plaintiff, and defendant excepts. Exceptions sustained.W. A. Rollins, of Boston, for plaintiff.

D. J. Triggs, of Boston, for defendant.

SANDERSON, J.

This is an action of contract with a declaration in three counts; the first, to recover a balance due upon a written contract afterwards modified by oral agreement; the second, to recover the same amount for work done and materials furnished by the plaintiff in building a garage for the defendant; and the third, upon a quantum meruit for extra work. The defendant's answer is a general denial, payment, and an answer in recoupment. The case was referred to an auditor with a stipulation this his findings of fact should be final.

The declaration stated that the second count was for the same cause of action as the first. The auditor's report shows that the defendant, a few days after the work was begun, desired to change the construction of the garage by the addition of a boiler room, office and chimney, which required tearing down a part of the foundation already built and making a deeper excavation. He allowed the plaintiff the amount found due for work and labor in making these changes under the third count for extras. The auditor also found that the ‘requirements of the written contract, except as hereinafter indicated, were substantially complied with, and plaintiff is entitled to recover the contract price, less payments made on account thereof, after making certain deductions on account of poor construction and work required to remedy the same, and for failure to comply with the building laws,’ and that time was not of the essence of the contract. The concrete floor was laid from 1/2 to 1 1/2 inches thinner than required by the contract. It contained an excess of gravel or sand, with not enough cement to set and hold it; the surface was improperly graded and uneven, the soil was not properly prepared before the cement was laid, and, through the plaintiff's fault, it was left without heat, and froze. Certain inside finish was not covered with metal, as required by the building laws of Brockton. For these and other omissions or defects in the performance of the contract, the auditor allowed a sum in recoupment, deducting the amount from the contract price and stating that he had in mind solely the claim of the plaintiff on the written contract. The first item in the account as stated by the auditor is: ‘For buiding the garage under the written contract in substantial conformity thereto, $2,700.’ On the count for extra work and materials, the auditor found for the plaintiff in the sum of $153 and interest.

A judge of the superior court, who heard the case upon the auditor's report, found for the plaintiff in the sums stated by the auditor to be due, with interest, but ruled, in accordance with the defendant's request, that there could be no recovery on the first count. The defendant presented 15 requests for rulings and excepted to the decision of the court in finding for the plaintiff, to the judge's refusal to rule as requested, and to the rulings made. The judge stated that the auditor found expressly, or by necessary implication, that the plaintiff had substantially and in good faith performed the contract, and ruled that the changes and omissions and defects in material and workmanship were not of sufficient importance to defeat the plaintiff's right to recover on quantum meruit; that the measure of recovery is the actual benefit received by the defendant from the labor performed and materials furnished, not exceeding the amount of the contract price; that it was within the province of the auditor, in determining the amount of such benefit, to consider the proportion in value which the work done bears to the whole value of the work if done in strict compliance with the contract; and that the fact that such proportionate value was found by making deductions representing the depreciation in value on account of variations,...