GEORGE COSTONIS vs. MEDFORD HOUSING AUTHORITY.
Supreme Judicial Court of Massachusetts, Suffolk
March 6, 1961. - June 30, 1961.
343 Mass. 108
Present: WILKINS, C.J., SPALDING, WILLIAMS, WHITTEMORE, CUTTER, KIRK, & SPIEGEL, JJ.
The judge could not have granted request 7: “Having refused to furnish the blocking for all exterior wood window frames the plaintiff cannot recover under count 2.” The instruction assumed that the contract required blocking to be furnished and would have tended to mislead the jury in respect to the issue on which they were expected to make a finding. Even if the instruction had been phrased hypothetically it could not have been ruled that in the circumstances there was such an intentional departure from the contract that it amounted to bad faith and barred recovery. See Bowen v. Kimbell, 203 Mass. 364, 370; Lantz v. Chandler, 340 Mass. 348, 349. Compare Andre v. Maguire, 305 Mass. 515.
Exceptions overruled.
Contract, Modification, Waiver, Building contract. Agency, Scope of authority or employment. Waiver. Housing. Corporation, Housing authority. Evidence, Relevancy and materiality. Practice, Civil, Exceptions: general exception. Words, “Administer.”
In an action for work done by the plaintiff for the defendant, a Housing Authority, pursuant to an alleged modification of a written contract for painting the concrete foundations of a housing development, evidence that the written contract called for the application “by spray” of paint conforming to Federal specification, and that the defendant‘s executive director required the plaintiff to apply instead a brand name paint which did not appear in nor meet the requirements of such specification and could not be sprayed, to use an additive for better adhesion, and “to get started on the job,” and stated that, if the plaintiff‘s contention that he was not obligated to use the paint required by the executive director was right, “a change order would be forthcoming and [the plaintiff] would be compensated,” warranted a finding that the written contract had been modified orally if the executive director had authority to modify it. [113]
In an action against a corporation for additional work done by the plaintiff pursuant to an alleged oral modification of a written contract, there was no merit in an exception by the defendant to the admission, over its general objection, of certain evidence bearing on the issue of such modification. [116]
TORT OR CONTRACT. Writ in the Superior Court dated April 2, 1959.
The action was heard by Tomasello, J.
The case was argued in March, 1961, before Wilkins, C.J., Williams, Whittemore, Cutter, & Spiegel, JJ., and afterwards was submitted on briefs to Spalding and Kirk, JJ.
John S. Ahern, for the defendant.
Robert D. O‘Leary, (Abraham H. Kahalas with him,) for the plaintiff.
SPIEGEL, J. In this action of tort or contract the plaintiff seeks to recover a balance of $1,687 under a painting contract made with the defendant (ten per cent of the contract price withheld), and the sum of $4,464 for additional work requested by the defendant.
There are three counts in the plaintiff‘s declaration: one in tort for deceit, the second for such balance and for the value of the additional work, and the third on an account annexed. The judge in the Superior Court found for the plaintiff in the sum of $6,701.50, which included interest.
We summarize the facts as favorably for the plaintiff as the judge could have found them on the evidence.
The defendant is a “Housing Authority” created under
The plaintiff submitted a bid in the sum of $16,873 which was accepted and a contract was executed between the plaintiff and the defendant under date of June 10, 1958. The plaintiff received a “notice to proceed” dated July 23, 1958, from the defendant through its executive director, Palumbo. This notice contained the following statement: “You are informed that Mr. Gerald A. Palumbo has been appointed Contracting Officer and that he is duly authorized to administer your Contract for and in the name of the Medford Housing Authority.” This notice indicates that copies thereof were sent to the Medford Housing Authority and the State Housing Board. On July 25, 1958, Palumbo wrote a letter to the plaintiff which read in part: “I must state that I shall look to you as the Contractor; and I shall expect that you will assume all responsibilities inherent with that position to include any and all discussions that may arise in connection with the administration of the Contract. . . . Therefore, I shall expect to conduct all business with you directly.”
The contract recites that “No change in the work shall be undertaken, nor shall any claim for extra work be valid, unless such change in the work be done in pursuance of a written order of the Authority, approved by the [State Housing] Board, specifically stating the character and conditions of the change and the amount by which the Contract Price and/or Contract Time for completion is to be adjusted. . . . When determining the value of any change, either additive or subtractive, the contracting parties are restricted to the following method: The contracting parties shall negotiate and agree upon the equitable value of the change prior to issuance of the order and the order shall stipulate the corresponding lump-sum adjustment of the Contract Time.”
A letter was written by the director of the State Housing Board to the chairman of the defendant housing authority dated March 24, 1959, in which the following language
At the close of the evidence the defendant presented nine requests for rulings which were denied for reasons given by the judge. The defendant excepted to the “rulings and findings” made by the trial judge and to the admission of certain evidence.
The trial judge based his general finding for the plaintiff and his denials of the defendant‘s requests for rulings on his special findings that the written contract was modified orally by the defendant through its contracting officer, Palumbo, and that Palumbo had “authority . . . by implication” so to modify the written contract. Therefore, a decision on the propriety of the trial judge‘s special findings will serve to answer the defendant‘s exceptions to the denial of its requests for rulings and to the general finding for the plaintiff. The rule to be applied is that “The general and special findings of the judge in an action at law are to stand if warranted in law upon any possible view of the evidence.” Treasurer & Recr. Gen. v. Macdale Warehouse Co. 262 Mass. 588, 592.
The authority of an agent is a question of fact, “the answer to which depends upon the inferences to be drawn from a variety of circumstances relating to the conduct of the apparent agent, and whether the circumstances are such as to warrant persons dealing with him, in the exercise of reasonable prudence and discretion, to believe he has authority to represent the alleged principal in regard to the transaction in question.” Lord v. Lowell Inst. for Sav. 304 Mass. 212, 214. Bond Pharmacy, Inc. v. Cambridge, 338 Mass. 488, 491.
A housing authority has the contracting powers of a private corporation. See Johnson-Foster Co. v. D‘Amore Constr. Co. 314 Mass. 416, 419; Opinion of the Justices, 322 Mass. 745, 752. It is “liable in contract or in tort in the same manner as a private corporation.” Ryan v. Boston Housing Authy. 322 Mass. 299, 300.
The contract provision requiring a written order of the Authority before any change in the work be undertaken or any claim for extra work be valid might be waived.
“The provision of the written contract that ‘no charge for extra work will be honored and paid unless the owner shall order same by a writing directed to the contractor stating the nature of the work to be performed and the sum
“Evidence relating to the oral modification of the contract by the parties was rightly admitted notwithstanding its provision that none of its terms may be altered or waived except by written instrument.” Staples Coal Co. v. Ucello, 333 Mass. 464, 468. See Blair v. National Reserve Ins. Co. 293 Mass. 86, 88.
The name “Gerald A. Palumbo Executive Director” was the only one appearing on the letterhead of the Authority; his is the only name appearing on the “Invitation for Bids“; the “Invitation for Bids” was made a part of the contract; Palumbo drafted the “Specifications” which was also made a part of the contract; he made inspections while the work was in progress; he was the “Contracting Officer” with authority “to administer the Contract for and in the name of the Medford Housing Authority“; he was the man the plaintiff spoke to about the materials to be used on the job; he was the man who wrote and signed all correspondence directed to the plaintiff from the Authority.
It would not be unreasonable for the trial judge to conclude that Palumbo being authorized to “administer” the contract and being ex-officio secretary of the Authority and acting as its spokesman had extensive apparent authority to agree to a change in the work without a written order. See Watkins v. Simplex Time Recorder Co. 316 Mass. 217, 226.
The word “administer” is one susceptible of a very broad interpretation. In Fluet v. McCabe, 299 Mass. 173, at page 179, it was said that “[t]o ‘manage’ is to control and direct, to administer, to take charge of . . .” (emphasis supplied). The phrase in
An individual in charge of a transaction has been held to have broad apparent authority (see Johnson v. New York, N. H. & H. R.R. 217 Mass. 203, 208; McKinney v. Boston & Maine R.R. 217 Mass. 274, 276; England Bros. Inc. v. Miller, 274 Mass. 239; cf. Desrochers v. Brady, 299 Mass. 269) “[a]nd what he has done in the ordinary course of transacting his principal‘s business and the title he has been permitted to use are admissible to prove the scope of his authority.” Segal v. Allied Muts. Liab. Ins. Co. 285 Mass. 106, 109.
There is an analogy of a housing authority to a municipal corporation because of the statutory and public responsibilities of its members. Delegations of authority or acts tending to establish apparent authority by such a public body should be scrutinized with great care by any trier of facts.
In view of the various acts of the Authority and Palumbo set forth above and the cumulative effect of these acts we cannot say that the trial judge could not reasonably find that Palumbo had apparent authority to waive the provisions of the written contract and to order extra work.
Exceptions overruled.
WHITTEMORE, J. (with Spalding, J., and Cutter, J.) dissenting. The evidence, we submit, does not support the conclusion that Palumbo had apparent or implied authority to modify the contract. In determining the authority of such an agent the rules for State and municipal contracts should be applied. On the facts, however, even under the rules applicable to a private corporation the Authority would not be bound by an attempt by Palumbo to change the contract. Furthermore, the evidence does not show that Palumbo attempted to modify the contract to permit the plaintiff to recover without a written change order.