Mechanical Service Engineers, Inc. v. Fineberg Management, Inc.

1999 Mass. App. Div. 109, 1999 Mass. App. Div. LEXIS 41
CourtMassachusetts District Court, Appellate Division
DecidedMay 11, 1999
StatusPublished
Cited by3 cases

This text of 1999 Mass. App. Div. 109 (Mechanical Service Engineers, Inc. v. Fineberg Management, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mechanical Service Engineers, Inc. v. Fineberg Management, Inc., 1999 Mass. App. Div. 109, 1999 Mass. App. Div. LEXIS 41 (Mass. Ct. App. 1999).

Opinion

Curtin, J.

This is a Dist./Mun. Cts. R. A. D. A., Rule 8C appeal by defendant Fineberg Management, Inc. (“Fineberg”) of the entry of summary judgment in [110]*110favor of plaintiff Mechanical Service Engineers, Inc. (“MSE”), and of the denial of Fineberg’s motions to amend its counterclaim and to substitute another party as defendant.

By complaint dated January 9, 1996, MSE instituted this action to recover $9,864.85 in labor and materials for electrical and HVAC services it provided at various commercial properties allegedly owned and operated by Fineberg. Fineberg’s answer denied liability on the grounds that it was merely the agent for Ashland Technology Trust (“Ashland”) and other unidentified, associated owners of the commercial properties in question. Fineberg also counterclaimed for damages purportedly sustained by Ashland in consequence of MSE’s alleged misrepresentation, negligence and G.L.c. 93A unfair and deceptive practices on another Ashland project (the “1993 Project”) unrelated to MSE’s claim for services rendered.

On April 29,1997, a default judgment was entered against Fineberg for its continued failure to answer interrogatories and other discovery requests by MSE. Fineberg delayed for almost eight months before moving for relief from that judgment, and its Mass. R. Civ. R, Rule 60 motion was allowed on January 30,1998. On April 16,1998, more than two years after this suit was commenced, Fineberg filed a motion to substitute Ashland in its place as defendant and to amend its counterclaim by adding a claim for breach of contract on the 1993 Project. MSE thereafter moved for summary judgment on both its complaint and Fineberg’s counterclaim. On July 22,1998, the court allowed MSE’s Rule 56 motion and denied Fineberg’s motions to amend and to substitute Ashland.

1. It is undisputed, with respect to MSE’s claim for labor and materials, that Fineberg contracted for the services in question, that MSE performed those services between May and September, 1994 and billed Fineberg directly for payment, that the work was inspected and accepted by Fineberg, that Fineberg issued three checks to MSE in full payment, and that Fineberg’s subsequent orders to stop payment on those checks gave rise to this litigation. The sole issue between the parties on MSE’s complaint is whether Fineberg, as the purported agent of Ashland, is liable for the services for which it contracted. It is well established that an agent may avoid personal liability on a contract entered into by the agent on behalf of his principal only if the agent discloses both the identity of his principal and the fact that he is acting in a representative capacity. Atlantic Salmon A/S v. Curran, 32 Mass. App. Ct. 488, 492 (1992).

MSE satisfied its initial burden, as the Rule 56 moving party, see Lindsay v. Romano, 427 Mass. 771, 773 (1998); Bergendahl v. Massachusetts Elec. Co., 45 Mass. App. Ct. 715, 718 (1998), of demonstrating that there was no genuine issue of material fact as to Fineberg’s liability, and that it was entitled to judgment on its complaint as a matter of law. See generally Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 127 (1997); Ellis v. Safety Ins. Co., 41 Mass. App. Ct. 630, 632 (1996). Through the supporting affidavit of its president, James J. Beagan (“Beagan”), MSE established that Beagan had personally represented MSE in its dealings with Fineberg, that Fineberg contracted directly with MSE and requested the services to be provided at various commercial properties, and that Beagan understood that the properties were owned or operated by Fineberg. As to Fineberg’s allegation that it acted solely as an agent for a disclosed principal, Beagan expressly averred that “at no time did any person from Fineberg represent to me that they were acting as an agent for a so-called Ashland Realty Trust.” These averments were sufficient to shift to Fineberg the burden of advancing specific facts, see Doe v. Liberty Mut. Ins. Co., 423 Mass. 366, 368 (1996); HRPT Advisors, Inc. v. MacDonald, Levine, Jenkins & Co., 43 Mass. App. Ct. 613, 621 (1997), sufficient to show the existence of a genuine issue requiring a trial on the merits as to whether Fineberg disclosed that it contractedthat the affiant is qualified to testify to the matters stated therein.” See T & J Wholesale, Inc. v. Kavlakian, 1998 Mass. App. Div. 99, 101. The Goldberg and Burke affidavits were devoid of any [111]*111suggestion that either dealt personally or directly with MSE, or participated in Fineberg’s arrangements with MSE for the services in question. “[F] actual allegations not based on personal knowledge are insufficient to defeat summary judgment.” Madsen v. Erwin, 395 Mass. 715, 721 (1985). Burke’s averment that Fineberg followed its customary practice with outside contractors by advising MSE that it was engaging its services on behalf of Ashland was made solely upon Burke’s “information and belief.” That averment, and the Goldberg affidavit in its entirety, which failed to separate statements made on personal knowledge from those made on “information and belief,” were properly disregarded by the trial court. Shapiro Equip. Corp. v. Morris & Son Constr. Corp., 369 Mass. 968 (1976); Gulf Oil Corp. v. Haufler, 16 Mass. App. Ct. 937 (1983).

The only other evidence offered by Fineberg were copies of the three checks issued to MSE in payment for its services and upon which Fineberg stopped payment. The checks failed, however, to demonstrate that Fineberg had disclosed both its agency and the identity of Ashland, its principal, at the commencement of its dealings with MSE. First, the checks were issued not only months after Fineberg’s contracting with MSE, but also after the work was fully performed. Second, while notations on the checks describe Fineberg as the "managing agent,” only one of the checks indicates that Fineberg was the agent of Ashland Technology Trust. A second check identifies Fineberg as the agent of a “Mill Village Realty Trust.” On the third check, the listing of Fineberg as a managing agent is followed by a blank, with no designation of a principal. It was not MSE’s duty "to seek out the identity of [Fineberg’s] principal; it was [Fineberg’s] obligation fully to reveal it.” Atlantic Salmon A/S v. Curran, supra at 492.

The duty rests upon the agent, if he would avoid personal liability, to disclose his agency, and not upon others to discover it. It is not, therefore, enough that the other party has the means of ascertaining the name of the principal; the agent must either bring to him actual knowledge or, what is the same thing, that which to a reasonable man is equivalent to knowledge, or the agent will be bound. There is no hardship to the agent in this rule, as he always has it in his power to relieve himself from personal liability by fully disclosing his principal and contracting only in the latter’s name. If he does not do this, it may well be presumed that he intended to make himself personally responsible. I MECHEM ON AGENCY §1413 (2d ed. 1914).

Id. at 493.

As Fineberg failed to advance adequate facts warranting a trial on the issue of whether it contracted with MSE solely as Ashland’s agent, the trial court properly allowed summary judgment against Fineberg on MSE’s complaint.

2.

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1999 Mass. App. Div. 109, 1999 Mass. App. Div. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mechanical-service-engineers-inc-v-fineberg-management-inc-massdistctapp-1999.