Warren H. Bennett, Inc. v. Charlestown Savings Bank

Massachusetts Appeals Court

Warren H. Bennett, Inc. v. Charlestown Savings Bank

328 N.E.2d 527, 3 Mass. App. Ct. 753, 1975 Mass. App. LEXIS 789

CourtMassachusetts Appeals Court

DecidedMay 22, 1975

StatusPublished

Cited by10 cases

This text of 328 N.E.2d 527 (Warren H. Bennett, Inc. v. Charlestown Savings Bank) 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.

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Warren H. Bennett, Inc. v. Charlestown Savings Bank, 328 N.E.2d 527, 3 Mass. App. Ct. 753, 1975 Mass. App. LEXIS 789 (Mass. Ct. App. 1975).

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Opinion

We are not persuaded by any of the arguments advanced in the plaintiff’s brief (see Town Bank & Trust Co. v. Silverman, ante, 28, 32 [1975]) that the defendant’s demurrer to the declaration was improperly sustained — whether the allegations therein be tested by the law in effect on February. 26, 1974, when the demurrer was acted upon (see Mass.R.Civ.P. 1A, subpar. 7, 365 Mass. 732 [1974]; Harrison v. Textron, Inc. 367 Mass. 540, 557-558 [1975]) or by the law in effect when the appeal was heard by this court (see Charbonnier v. Amico, 367 Mass. 146, 147, fn. 3, and 152-153 [1975]). Count 1, based on a supposed breach of contract, fails to state or even intimate that “the provisions of the bond [to be required of the general contractor] ... show[ed] an intention to benefit subcontractors ... and to give them a direct right upon the bond....” Morse Bros. Elec. Co. Inc. v. Martin Shore Realty Co. Inc. 344 Mass. 81, 84 (1962). Compare James D. Shea Co. Inc. v. Perini Corp. 2 Mass. App. Ct. 912 (1975). Contrast Johnson-Foster Co. v. D’Amore Constr. Co. 314 Mass. 416, 420-422 (1943). Count 2, in which the plaintiff attempts to adapt essentially the same allegations to a claim for recovery on a negligence theory, fails to disclose any duty owed the plaintiff by the defendant to require the general contractor to obtain a payment bond for the benefit of subcontractors. See Restatement 2d: Torts, §§314, 315 (1965). See also Pridgen v. Boston Housing Authy. 364 Mass. 696, 710 (1974). No actionable deceit is alleged in Count 3, as the representation allegedly relied upon was so indefinite and imprecise as to render such reliance unreasonable as a matter of law. Compare Saxon Theatre Corp. of Boston v. Sage, 347 Mass. 662, 666-667 (1964); Stroscio v. Jacobs, 2 Mass. App. Ct. 827 (1974). Contrast Barrett Associates, Inc. v. Aronson, 346 Mass. 150, 152 (1963), and cases cited.

Order sustaining demurrer affirmed.

Judgment for the defendant.

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We are not persuaded by any of the arguments advanced in the plaintiff’s brief (see Town Bank & Trust Co. v. Silverman, ante, 28, 32 [1975]) that the defendant’s demurrer to the declaration was improperly sustained — whether the allegations therein be tested by the law in effect on February. 26, 1974, when the demurrer was acted upon (see Mass.R.Civ.P. 1A, subpar. 7, 365 Mass. 732 [1974]; Harrison v. Textron, Inc. 367 Mass. 540, 557-558 [1975]) or by the law in effect when the appeal was heard by this court (see Charbonnier v. Amico, 367 Mass. 146, 147, fn. 3, and 152-153 [1975]). Count 1, based on a supposed breach of contract, fails to state or even intimate that “the provisions of the bond [to be required of the general contractor] ... show[ed] an intention to benefit subcontractors ... and to give them a direct right upon the bond....” Morse Bros. Elec. Co. Inc. v. Martin Shore Realty Co. Inc. 344 Mass. 81, 84 (1962). Compare James D. Shea Co. Inc. v. Perini Corp. 2 Mass. App. Ct. 912 (1975). Contrast Johnson-Foster Co. v. D’Amore Constr. Co. 314 Mass. 416, 420-422 (1943). Count 2, in which the plaintiff attempts to adapt essentially the same allegations to a claim for recovery on a negligence theory, fails to disclose any duty owed the plaintiff by the defendant to require the general contractor to obtain a payment bond for the benefit of subcontractors. See Restatement 2d: Torts, §§314, 315 (1965). See also Pridgen v. Boston Housing Authy. 364 Mass. 696, 710 (1974). No actionable deceit is alleged in Count 3, as the representation allegedly relied upon was so indefinite and imprecise as to render such reliance unreasonable as a matter of law. Compare Saxon Theatre Corp. of Boston v. Sage, 347 Mass. 662, 666-667 (1964); Stroscio v. Jacobs, 2 Mass. App. Ct. 827 (1974). Contrast Barrett Associates, Inc. v. Aronson, 346 Mass. 150, 152 (1963), and cases cited.

Order sustaining demurrer affirmed.

Judgment for the defendant.

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328 N.E.2d 527, 3 Mass. App. Ct. 753, 1975 Mass. App. LEXIS 789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warren-h-bennett-inc-v-charlestown-savings-bank-massappct-1975.

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