340 Mass. 466 | Mass. | 1960
In this action heard by a judge in the Superior Court without a jury the Wellesley Housing Authority seeks to recover, from the general contractor for a housing project, the cost of installing waterproof or exterior grade plywood in place of interior grade plywood in the soffits (panels under overhanging roofs) of the housing project.
The plaintiff’s exceptions are to the general finding for the defendant, to action on requests, and to evidential rulings.
The evidence showed and the judge found in substance that the plans, under the contract of January 9, 1950, carried the words “W. P. Plywood” which meant either waterproof or weatherproof plywood but “nowhere in the contract or the specifications [apart from the drawings3 was' there any reference to the type or description of the plywood”; the defendant (Allen) installed interior plywood, which because of the glue used is more likely to delaminate than is W. P. Plywood; inadequate ventilation caused condensation of moisture at the soffits; in 1951 Allen “remedied the condition that was obvious pertaining to the plywood soffits and their delamination and . . . the design for ventilation was changed; . . . the condition persisted” and the dispute between the parties continued.
It was undisputed that after final payment the plaintiff had had the soffits replaced by another contractor, and demanded payment from Allen.
1. The contract required that “W. P. Plywood,” specified on the drawings, be installed. The “work” was to be done in accordance with the specifications “and the drawings referred to therein.” It was irrelevant to the action that the delamination which disclosed the defendant’s default was caused or made worse by inadequate vents for the spaces above the soffits. We rule therefore that the finding for the defendant cannot be sustained on the second ground stated.
2. We think, however, that a ruling that the dispute had been finally disposed of under § 19 of the general conditions was warranted and the ruling is required that the authority’s claim did not survive the final payment to Allen under the contract.
The evidence showed that substantial delamination was known from and after February, 1951. In October, 1951, the architect notified Allen that as a condition of final pay
On February 16, 1953, the authority by its executive director wrote the new chairman of the board, referring to the letter of December 22, 1952, and asking that he “review this matter. . . . The replacement of soffits, if it must be
The board on April 27 sent the executive director the approved copies of Part II of the completion certificate, and on April 29 the executive director sent Allen the authority’s check "for . . . final payment on contract.”
The plaintiff relies on the absence of a formal reference to the architect and of an appeal from his decision. We do not think the informality significant. The authority caused the dispute, without the delay of formal reference, to come before the agency whose decision was to be final under the contract. The letter of December 22, 1952, left it uncertain
The significance of the final payment after the board’s decision is to be judged in the light of §§ 391 and 7 of the general conditions. Section 391 provides that "As a condition precedent to his right to final payment, the contractor shall make all corrections in the work which are required to remedy any defects in the work, or to replace faulty materials with materials complying with the specification herein, or to fulfill any of the orders or directions of the authority, or the architect, made under the terms of this contract. Unless and until the contractor has complied with this requirement, the contractor shall not be entitled to make any claim or bring any action against the authority for moneys withheld.”
Section 7 provides that "Neither the final certificate of payment nor any provision in the contract documents nor partial or entire use or occupancy . . . shall constitute an acceptance of work not done in accordance with the contract documents or reheve the contractor or his sureties ... in respect to . . . responsibility for faulty materials or workmanship. The contractor or his sureties shall remedy any defects in the work and pay for any damage to other work resulting therefrom which shall appear within a period of one year from the date of final acceptance unless a longer
The authority acted to have it determined whether there were any defects which the contractor could be required to correct as a condition of receiving final payment. Section 7 did not cause the claim for rectification of the known defective soffits to survive the final payment following the determination of the issue in the way which the authority had chosen and the contract in substance provided.
There is no basis for finding that this was a defect discovered after final payment. Allen denies the authority’s right to make good such a defect and charge the cost to the contractor without first giving it an opportunity to do the necessary work. We do not reach that issue.
The office of the executive director of a local housing authority is established by statute. G. L. c. 121, § 26N. This official may by the statute have such duties as are assigned him. No question is raised as to the authority in the premises of the executive director and there appears no basis for doubting it.
We discern no ground for upsetting the settlement of this dispute by the board. The decision of the board’s chairman on the evidence in this record appears plainly wrong. But we do not know all that was before the board. The board may have decided, contrary to our holding, that the specifications did not adequately specify waterproof plywood; it may have deemed, as we do not, that the inadequate ventilation was relevant. Such errors, if established, are not a basis of upsetting an award. There is no such gross mistake as implies bad faith, and no basis for finding a failure to exercise honest judgment. Kesslen Bros. Inc. v. Board of Conciliation & Arbitration, 339 Mass. 301, 302-303, and cases cited. Nothing in Dondis v. Borden, 230 Mass. 73, relied on by the plaintiff, impairs the effect of the decision of the chairman and the final certificate based thereon which was intended by the authority to be a final certificate after disposition of its claim against Allen.
We need not review the rulings given an4 denied. The
The plaintiff relies on evidence in the case, offered and excluded, tending to show that the board was acting in its supervisory capacity.
If the authority wished to reserve its limited rights to attack the final decision and did not intend that the final payment should dispose of the claim against Allen, it should have made an express reservation.
Exceptions overruled.
The general conditions of the contract defined “board” and “State housing board” to “mean the chairman of the State housing, an agency . . . created by chapter 260, Acts of 1948.” That statute inserted G. L. c. 6, § 64, and provides that the powers and duties of the board other than making reports “shall be exercised and performed by the chairman.”
General Laws c. 121, § 26U (as amended through St. 1946, c. 574, § 1), reads: “Each housing authority shall keep an accurate account of all its activities and of all its receipts and expenditures and shall annually in the month of January make a report thereof to the housing board, to the director of the division of accounts in the department of corporations and taxation, and to the mayor of the city or to the selectmen of the town within which such authority is organized, such reports to be in a form prescribed by the board, with the written approval of said director. The housing board or the said director may investigate the affairs of housing authorities and their dealings, transactions and relationships. They shall severally have the power to examine into the properties and records of housing authorities and to prescribe methods of accounting and the rendering of periodical reports in relation to projects undertaken by such housing authorities. The housing board may from time to time make, amend and repeal rules and regulations prescribing standards and stating principles governing the planning, construction, maintenance and operation of projects by housing authorities. Compliance with the Housing Authority Law, the rules and regulations adopted by the housing board hereunder, and the terms of a clearance or low-rent housing project approved by the housing board, may be enforced by a proceeding in equity.”