Acme Plastering Co. v. Boston Housing Authority

490 N.E.2d 445, 21 Mass. App. Ct. 669, 1986 Mass. App. LEXIS 1413
CourtMassachusetts Appeals Court
DecidedMarch 11, 1986
StatusPublished
Cited by12 cases

This text of 490 N.E.2d 445 (Acme Plastering Co. v. Boston Housing Authority) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acme Plastering Co. v. Boston Housing Authority, 490 N.E.2d 445, 21 Mass. App. Ct. 669, 1986 Mass. App. LEXIS 1413 (Mass. Ct. App. 1986).

Opinion

Warner, J.

This case arose out of disputes about the work performed by the plaintiff (Acme) under a written contract [670]*670with the Boston Housing Authority (BHA) for the waterproofing of eighty roof exits (called penthouses) at a housing development in South Boston. After a jury-waived trial in the Superior Court, the judge made findings of fact and rulings of law, and a judgment in quantum meruit was entered for the plaintiff in the amount of $112,203.84. On motion of the plaintiff, an amended judgment, which added interest under G. L. c. 30, § 39K, was entered in the amount of $181,319.62.1 On appeal, BHA argues that (1) the plaintiff did not sustain its burden of showing substantial performance of the contract and a good faith effort to perform fully, see Andre v. Maquire, 305 Mass. 515, 516 (1940), and (2) that interest under G. L. c. 30, § 39K, may not be awarded on a judgment in quantum meruit.

It is necessary only to summarize the facts generally. In its original form, the contract called for sandblasting of surfaces, installation of stainless steel flashings and comer beads and application of pressure applied cement plaster. Before the contract was signed on May 18, 1979, Acme proposed and BHA representatives orally agreed to the substitution of metal lath for sandblasting and zinc for stainless steel beads. Acme subsequently received written notice to begin work on July 16. Informed by BHA that a change order was in progress, Acme began to install the metal lath on July 18. By letter dated August 10, 1979, Acme’s preparatory work was rejected on account of eight specified alleged deficiencies. On September 10, a revised change order specified the substitution of “comer beads” instead of the more general term “beads.” As a result, between September 17 and October 9, 1979, some zinc materials already in place had to be replaced with stainless steel. The cement plaster was applied in substantial part by hand troweling instead of by machine.

There were disputes between the parties about the specifications, methods used, thickness of mortar required and extra [671]*671costs. BHA authorities repeatedly faulted Acme’s work but never issued a formal stop order or paid any of Acme’s requisitions. However, on January 21, 1980, BHA’s field inspector reported in writing to BHA: “It appears that the contractor has completed contract 100%.” On January 30, 1980, Acme submitted a final bill for $124,251.48.

1. The judge’s findings of fact. At the threshold, BHA complains that the judge’s findings lack particularity and are, therefore, insufficient to support his conclusion that Acme substantially performed under the contract and made a good faith effort to perform fully. “Rule 52(a) [365 Mass. 816 (1974)] of the Massachusetts Rules of Civil Procedure does not require extensive detail, but does impose on the judge an independent duty to articulate the essential grounds of his decision. Its purpose is to ensure that the judge ‘may be satisfied that he has dealt fully and properly with all the issues’ and that ‘the parties involved and this court on appeal may be fully informed as to the bases of his decision’” (citation and footnote omitted). Schrottman v. Barnicle, 386 Mass. 627, 638-639 (1982), quoting from Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass. App. Ct. 412, 416 (1980). Here, although not in the detail which is desirable, we think the judge’s findings substantially fulfil those purposes. We may not set those findings aside unless they are clearly erroneous. Mass.R.Civ.P. 52(a). “The question for the appellate court under Rule 52(a) is not whether it would have made the findings the trial court did, but whether ‘on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed.’” Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 161 (1977), quoting from Guzman v. Pichirilo, 369 U.S. 698, 702-703 (1962).

In determining whether Acme substantially performed under the contract, the judge’s task was to examine the evidence “in reference to the entire contract and what has been done and omitted to be done under it.” Glazer v. Schwartz, 276 Mass. 54, 57 (1931). See Albre Marble & Tile Co. v. Goverman, 353 Mass. 546, 550 (1968). The judge found that the bead, lath, and cement plaster work was done in a good and workman[672]*672like manner2 and achieved the contracted-for results in spite of conditions which hampered Acme’s ability to conform to the contract. As to the latter, the judge gave specific examples of the ways performance was hindered by BHA.3 His general finding that the contract was substantially performed as it related to the cement plastering requirements of the contract has ample support in the evidence.4

The BHA next argues that the “unilateral” decision to abandon the application by machine is inconsistent with the judge’s finding that Acme made a good faith effort to perform fully. Generally, “[i]n the absence of special exculpating circumstances [emphasis supplied] an intentional departure from the precise requirements of the contract is not consistent with good faith in the endeavor fully to perform it, and unless such [673]*673departure is so trifling as to fall within the rule de minimis, it bars all recovery.” Andre v. Maquire, 305 Mass. at 516. BHA contends that Acme intentionally decided to make a change that was not de minimis. However, the judge’s conclusion as to good faith is clearly based on findings of exculpatory circumstances which have firm bases in the evidence. The judge could have concluded that the arbitrary and capricious behavior of BHA, the serious lack of communication from BHA to Acme, the approval of BHA’s field supervisor and the failure of BHA to issue a stop order excused the deviation in the method of application of the cement plaster. Compare Morello v. Levakis, 293 Mass. 450, 453 (1936) (“[A] rule of law which would compel a court to find bad faith because of a departure of this kind, which could be found to have been necessary to the doing of a proper job, would be too rigid and unyielding for the practical accomplishment of justice”).5

Finally, BHA argues that the judge erred when in his findings he took “judicial notice that [at the time the work was being done by Acme] BHA was in a state of turmoil and disarray,” and by further finding that “it would therefore appear that any of the problems created on this subject were attributable to the foregoing characterizations of the problems besetting BHA.” There was evidence that BHA was placed in receivership in February, 1980, and that for a year or two prior thereto a court appointed master had been in some degree of charge. A review of the transcript indicates that the judge was probably only taking judicial notice of the receivership proceedings in the Superior Court. Cf. Michaud v. Sheriff of Essex County, 390 Mass. 523, 535 (1983); Allston Fin. Co. v. Hanover Ins. Co., 18 Mass. App. Ct. 96, 98 (1984). See generally Liacos, Massachusetts Evidence 29-34 (5th ed. 1981 & Supp. 1985). In any event, there was ample evidence, including that with respect to the administration of the contract in question, to support [674]

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Bluebook (online)
490 N.E.2d 445, 21 Mass. App. Ct. 669, 1986 Mass. App. LEXIS 1413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acme-plastering-co-v-boston-housing-authority-massappct-1986.