302 Mass. 495 | Mass. | 1939
This is a petition against the Commonwealth under G. L. (Ter. Ed.) c. 258, to recover a balance due. under a written contract, executed by the petitioner with the Commonwealth, for the construction of an extension to a reenforced concrete beam bridge in the towns of Bourne and Wareham; and also to recover damages alleged to have been suffered by the petitioner on account of delays in the
G. L. (Ter. Ed.) c. 258 furnishes the only remedy for the establishment and enforcement of all claims at law or in equity against the Com monwealth except in the few instances where some other method is authorized. Nash v. Commonwealth, 174 Mass. 335. McArthur Brothers Co. v. Commonwealth, 197 Mass. 137. The nature of the claim asserted is one in contract which could be enforced at common law by the ordinary methods if the respondent were other than a sovereignty. The Commonwealth is expressly authorized to avail itself of the provisions of the statutes relative to tender, offer of judgment, set-off and recoupment. We think that the proceedings should be regarded as setting forth an alleged claim at law although brought in the form prescribed by c. 258. Stockbridge v. Mixer, 215 Mass. 415. Adams v. Silverman, 280 Mass. 23.
The character and purport of a pleading are to be determined by the substantial allegations and the essential matters which it contains rather than its form or the title by which it is described. E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110. Universal Adjustment Corp. v. Midland Bank, Ltd., of London, 281 Mass. 303, 328. Pleas in bar have been abolished in actions at law and we think that the pleading in question should be treated as an answer in accordance with its plain tenor and its true nature. Whiton v. Balch, 203 Mass. 576. Young v. Duncan, 218 Mass. 346. White v. E. T. Slattery Co. 236 Mass. 28. Partan v. Niemi, 288 Mass. 111. DiRuscio v. Popoli, 269 Mass. 482. Gallo v. Foley, 299 Mass. 1. Styrnbrough v. Cambridge Savings Bank, 299 Mass. 22.
The petitioner is not harmed by dealing with the plea
The findings of fact made by a judge in an action at law must be sustained if they can be supported upon any reasonable view of the evidence, including such rational inferences as the evidence warrants. Moss v. Old Colony Trust Co. 246 Mass. 139. State Street Trust Co. v. Lawrence Manuf. Co. 284 Mass. 355. Mutual Life Ins. Co. v. Royal, 291 Mass. 487. Graustein v. H. P. Hood & Sons, Inc. 293 Mass. 207.
A party to a contract, who is not precluded by its terms from asserting a claim for damages due to delay in com
The parties may, and did in the case at bar, contract in reference to delay. It appears from the contract, which was introduced in evidence, that the petitioner undertook the construction of an extension to a bridge, and to furnish all labor and materials required for the performance of the work in conformity with the provisions of the contract; and agreed "to receive as full compensation for everything furnished and done by the Contractor under this contract . . . and also for all loss or damage arising out of the nature of the work aforesaid . . . and for all risks of every description connected with the work, and for all expenses incurred by or in consequence of the suspension or discontinuance of the work as herein specified . . . such unit prices as are set out in the accompanying proposal.” The specifications which were a part of the contract contained the following provision: "Article XVIII. Delay in Commencing Work. The Department may delay the commencement of the work, or any part thereof, if the Department shall deem it for the interest of the Commonwealth so to do. The Contractor shall have no claim for damages on account of such delay, but shall be entitled to so much additional time in which to complete the whole or any portion of the work required under the contract as the Engineer shall certify in writing to be just. The Contractor shall have no claim for damages on account of any delay on the part of the Department in performing or furnishing any work or materials to be performed or furnished by the Department in connection with the execution of the work covered by
The article must be construed in reference to all the remaining provisions of the written contract oTwhich it forms a pMC Contracts are made to be performed, and it must be~held that the parties intended to enter into a complete and 'final arrangement under such terms antT conditions as" would create and define their obligations and would enable themTTo accomplish their contemplated aims and objects. With this end in view, every phrase and clause must be presumed to nave been designedly employed, and must be practicable, when eon-given strued with all the other phraseology contained in t.hp. instrument, which must be"considered as a workable a.nrl hájmonioWTneans Tpr^carrying out and effectnfl.ting the intent of the parties. The literal interpretation of any word or1 phrase niay"be qüalified by the context in which it appears, by the general purpose manifested by the entire contract and by the circumstances existing at the time the contract was executed. Cohen v. Bailly, 266 Mass. 39, 46,
The contract was executed upon March 5, 1935, and provided for its completion by June 29, 1935. The work was to commence immediately upon the execution of the contract and was to continue without cessation until completed. The parties must have contemplated that there might be delay in the commencement of the work and they agreed that in that event the petitioner should be given such additional time for completion as the engineer should determine was just, but it was specifically provided that the petitioner should have no claim for damages on account of such delay. Such a provision negatives any pecuniary compensation for delay. Haydnville Mining & Manuf. Co. v. Art Institute, 39 Fed. 484. W. G. Cornell Co. v. Schuylkill County, 222 Fed. 876. Orlando v. Murphy, 84 Fed. (2d) 531. Hansen v. Covell, 218 Cal. 622. Richard v. Clark, 43 Misc. (N. Y.) 622. Goss v. Northern Pacific Hospital Association, 50 Wash. 236. Nelson v. Eau Claire, 175 Wis. 387.
The judge was right in ruling that the word “suspension,” as used in that portion of the contract providing that the expenses incurred by a suspension of the work should be borne by the petitioner, included interruptions in the progress of the work. Enright v. United States, 54 Fed. (2d) 182. McComber v. Kellerman, 162 Cal. 749. Robinson v. Kistler, 62 W. Va. 489.
The petition, in so far as it sought to recover for delays either in commencing the work or in temporary interruptions after the work was begun, did not set forth any valid
The petitioner did not introduce any evidence showing the reasons or causes of any of the delays alleged in its petition. The characterization of the action of the department of public works as negligent, unreasonable or due to indecision is not enough to avoid the pertinent provisions of the contract. The respondent or the officials in charge of the work are not charged with arbitrary, capricious or fraudulent action, nor with acting in bad faith or under such a gross mistake as to be tantamount to fraud. Marsch v. Southern New England Railroad, 230 Mass. 483, 495, 496. Hurley v. Boston, 244 Mass. 466. Ripley v. United States, 223 U. S. 695, 701. Montgomery v. Mayor, Aldermen & Commonalty of New York, 151 N. Y. 249.
There is nothing in the contention that the plea should have alleged, and the respondent should have proved, that the delay in beginning the work was deemed to have been in the interest of the Commonwealth. If it were material, then the petitioner, and not the Commonwealth, for reasons sufficiently stated, had the burden of showing that the delays were inconsistent with the public interest. No question of pleading was raised, and in the absence of evidence to the contrary it could be inferred that the officials in charge of the work were acting fairly and impartially in the public interest. Larkin v. County Commissioners of Middlesex, 274 Mass. 437, 440. Douglas v. Noble, 261 U. S. 165, 170.
Upon a report in an action at law, we can consider only such questions of law as are contained in the report. Weiner v. D. A. Schulte, Inc. 275 Mass. 379, 384. Gilbert v. Beacon Hill Credit Union, 287 Mass. 433. Even if we assume that it is open to the petitioner to contend that the changes made in the contract were so extensive as to result in a
In view of the nature of the proceedings held in the Superior Court, we might add that, if we were to treat the plea as a demurrer, it would have to be sustained, and the same result would be reached as that to which we have come. Stein v. Canadian Pacific Steamships, Ltd. 298 Mass. 479. Summers v. Boston Safe Deposit & Trust Co. 301 Mass. 167.
The action of the judge in ruling that the claims based upon delay were barred by the contract was right. Decision is to be entered for the petitioner in the sum of $423.38, together with interest from the date of the filing of its petition to the date of the filing of the offer of judgment, and the Commonwealth is to have costs from the date of the filing of the offer of judgment. G. L. (Ter. Ed.) c. 231, § 75. G. E. Lothrop Theatres Co. v. Edison Electric Illuminating Co. of Boston, 290 Mass. 189.
So ordered.