324 Mass. 376 | Mass. | 1949
The plaintiff entered into a contract with a general contractor by which the plaintiff agreed, among other things, to furnish and install the insulation of a gasoline storage tank having a capacity of fifteen thousand gallons. The plaintiff sublet this particular work on April 16, 1947, to the defendant, who in turn sublet it to one Roberts. The defendant was under an obligation to insulate the tank within a reasonable time after it was notified in July and
The declaration was based upon an account annexed, but the trial proceeded, apparently without objection from the defendant, upon the theory that the action was brought to recover damages for breach of contract. No question of variance is presented or considered. It is too late to raise here for the first time the question whether the evidence conformed to the declaration. Mass. Building Finish Co. Inc. v. Brenner, 288 Mass. 481, 484. MacDonald v. Adamian, 294 Mass. 187, 190. The rulings of the trial judge cannot be set aside if they were correct upon any form of pleading. Walker v. Nickerson, 291 Mass. 522. MacDonald v. Adamian, 294 Mass. 187. Swartz v. Lieberman, 323 Mass. 109, 111. We do not intimate that the extra expense could not be recovered either upon an account annexed or upon a count for breach of contract. Bloom, South & Gurney, Inc. v. Mitchell, 289 Mass. 376, 378.
The unreasonable delay of the defendant’s subcontractor in completing the work so that it was not performed until cold weather, necessitating a heated shelter to protect the insulation, caused extra expense which the plaintiff sustained in securing the proper performance of work that the defend
One of the principal items is the charge for the tarpaulins, which the general contractor had purchased at a cost of $224 and used to cover the shelter, and which, after the insulation was completed, it removed and has since kept in its possession. It charged the plaintiff for the price of the tarpaulins, and the plaintiff in turn charged the price to the defendant. The judge found in favor of the plaintiff for the purchase price. It is apparent from the tenor of the entire report, especially the last paragraph, that the trial judge intended to report this question of law. The defendant was not liable in this amount. The evidence shows that tarpaulins are frequently used by contractors and that they are serviceable for about a year. The report states that no evidence was introduced as to the value of their use, nor the extent that their value was reduced by their use in connection with the shelter. The plaintiff is made whole if it recovers for the fair value of the use of the tarpaulins. C. W. Hunt Co.
As there must be a new trial, we need not decide whether the evidence was sufficient to support the two labor charges, although the testimony went hardly farther than showing an outlay for labor in constructing and removing the shelter and running a steam pipe into it for heating purposes.
The order of the Appellate Division dismissing the report is reversed, and the action is remanded to the District Court for further proceedings.
So ordered.
For the measure of compensation for materials used but not consumed or rendered worthless, as for hire of equipment in the construction of public buildings, see G. L. (Ter. Ed.) c. 30, § 39, as appearing in St. 1935, c. 472, § 1; c. 149, § 29, as appearing in St. 1938, c. 361.