This is a petition under G.L.c. 258 to recover for work and expense allegedly incurred by the petitioner during the performance of a contract with the Commonwealth acting through the Metropolitan District Commission (Commission). Both the petitioner and the respondent filed motions for judgment on undisputed facts in the pleadings and affidavits of counsel, each seeking entry of judgment in its favor
The contract provided for the construction of a sewer for the Deer Island sewage treatment plant in the city of Boston. It included certain deep marine trench excavation and provided in part for construction and installation of forty linear feet of sixty-inch precast reinforced concrete subaqueous pressure diffuser pipe between designated stations on the outfall sewer line. The petitioner subcontracted the construction of this pipe to the Perini Corporation (Perini).
After manufacture of the pipe and its delivery to the job site and payment in full for it by the subcontractor, certain tidal actions created a condition which in the opinion of the engineer necessitated the deletion of the final twenty-four linear feet of the pipe. The deleted pipe was subsequently transported by the petitioner to its storage yard in East Boston and later, at the direction of the engineer, to the Commission's storage area on Deer Island. In a letter from the engineer to the Commission dated May 1, 1963, he stated the cost of the contractor's claim for the twenty-four feet of sixty-inch pipe to be $4,075.63, and further averred that the work performed by the petitioner was extra to the prime contract and should be approved for payment as an extra work claim. The Commission approved the claim in that amount on May 2, 1963, but subsequently requested an opinion of the Attorney General "as to the proper method of payment" for the unused pipe. Acting on the advice of the Attorney General, the Commission thereafter refused payment to the petitioner. The opinion of the Attorney General referred to the advertisement for bids (which became a part of the contract) which indicated that the work to be done consisted of the construction of approximately 5,454 linear feet of outfall sewer, that quantities to be excavated were approximate only, that the work under certain items might be materially greater or less than indicated, and
1. General Laws c. 258 contains the provisions of the statute law upon which the Commonwealth in general waives its sovereign immunity to lawsuits and consents that claims "`of the character which civilized governments have always recognized' (Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 31) be determined in its own courts by the same tests to which it forces its citizens to submit in the determination of their claims against each other. Nash v. Commonwealth, 174 Mass. 335, 339." Chilton Club v. Commonwealth, 323 Mass. 543, 545. It has been settled that in general the law applicable to public contracts is the same as that applicable to private contracts. "If ... [the United States] comes down from its position of sovereignty, and enters the domain of commerce, it submits itself to the same laws that govern individuals there." Cooke v. United States, 91 U.S. 389, 398. Hollerbach v. United States, 233 U.S. 165. United States v. S.S. Claiborne, 252 F.Supp. 897, 899 (S.D. Ala.). We approach decision of the matter raised by this petition with this in mind.
2. Under the provisions of the contract, an engineer was assigned to resolve all questions arising during its performance and, specifically, was empowered to make alterations either before or after the commencement of construction.
3. Based upon the foregoing, we view this contract as an agreement best interpreted under Restatement: Contracts, § 236. Section 236 (a) calls for an interpretation "which gives a reasonable, lawful and effective meaning to all manifestations of intention" as against an interpretation "which leaves a part of such manifestations unreasonable, unlawful or of no effect." Section 236 (d) provides additional guidance: "Where words or other manifestations of intention bear more than one reasonable meaning an interpretation is preferred which operates more strongly against the party from ... [which] they proceed [the Commonwealth], unless their use by ... [it] is prescribed by law."
4. We pause to consider certain aspects of this contract and the item, the non-payment for which produced this action. The diffuser pipe, as has been stated, possessed unusual design features and required specialized manufacture. It had no salvage value and the only possible user of it was the Commission. In the contract which the Commission presented to the petitioner it was provided that "[t]he time in which the various portions and the whole of this contract are to be performed and the work is to be completed is of the essence of this agreement." To comply with this commitment to have the diffuser pipe on the job when required, it was necessary that the contractor arrange for fabrication of the pipe at a period sufficiently far in advance
5. As we have indicated, performance by the contractor was prevented by the Commission in its own and the public interest. The petitioner may thus be excused from nonperformance of the requirements for payment set out in the
We hold that this case is governed by Albre Marble & Tile Co. Inc. v. John Bowen Co. Inc. 338 Mass. 394, 399. There, as here, preliminary samples, shop drawings, and so forth, were prepared under a clause similar to that appearing in the contract we discuss. There, as here, the labor and materials for which action was brought were not actually wrought into the structure but the preparatory efforts of the contractor were under the supervision of the defendant. The Albre case refers with approval to the statement of Professor Williston: "It is enough that the defendant has actually received in part performance of the contract something for which when completed he had agreed to pay a price." Williston, Contracts (2d ed.) § 1976. In the Albre case the value of the work done could not be returned in specie, and we make reference to Restatement: Contracts, § 468 (1),
6. In our view the petitioner is thus entitled to recover its costs representing fabrication, subcontractor's handling and storage costs, and a reasonable amount for subcontractor's overhead and profit, together with the petitioner's overhead and profit, on the item fabricated and furnished to the amount set forth in appendix A of the petition.
The orders of the judge are reversed. Judgment is to be entered for the petitioner in the sum of $4,483.19.