These are two actions of contract in which the plaintiff seeks to recover for architectural and engineering services rendered for the defendants. In case numbered 14,438, the services were in connection with the construction of a shopping center in Leominster in this Commonwealth. In case numbered 14,439, the services were in connection with the proposed construction of a warehouse in West Haven, Connecticut. The declarations were on accounts annexed for $182,231.94 and $25,965.77,
The defendants contend that the contracts are illegal on the basis of the pleadings, the plaintiff's answers to interrogatories, and the plaintiff's replies to the notices to admit facts. G.L.c. 231, § 69. The trial judge reserved and reported the cases on the defendants' motions for summary judgment under G.L.c. 231, § 59.
The trial judge gave as his reason for reporting the cases on June 3, 1969, that "the question of law raised is a novel one in this jurisdiction and ... it so affects the merits of the controversy that it should be decided prior to requiring the parties to undertake the expense of what will obviously be a long and expensive trial on the merits."
The defendants' purpose is wholly to defeat the plaintiff's claims for compensation and to obtain windfalls of $182,231.94 and $25,965.77, plus interest. Forfeiture should not be awarded summarily upon sketchy information. The records in the two cases should contain evidence
We should not try to make final disposition of the cases in these circumstances. As was said by Chief Justice Rugg in Gordon v. American Tankers Corp. 286 Mass. 349, 353, "It is not the function of this court to pass upon the credibility of witnesses or the weight of the evidence, much less to make our own decision of facts."
There is an added difficulty which is insuperable because of the presentation of the facts to us for action on the motions for summary judgment. In order to be entitled to summary judgment, the moving party must affirmatively show that there is no real issue of fact. For the procedure under the Federal rules see Empire Electronics Co. Inc. v. United States, 311 F.2d 175 (2d Cir.); American Manufacturers Mut. Ins. Co. v. American Bdcst.-Paramount Theatres, Inc. 388 F.2d 272, 278 et seq. (2d Cir.).
We fully approve the rules of the Supreme Court of the United States as stated in United States v. Diebold, Inc. 369 U.S. 654, 655: "On summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion." Here there is a very definite issue as to whether the actions are brought on oral or written contracts. This is not an issue to impose on an appellate court on the two records of the cases at bar.
From the notices to admit facts it appears that Reddoch, who is not a registered architect, did not exercise professional and supervisory control over the architectural services called for by the contracts, but inferentially he did supervise the other services. It does not appear who did exercise such
There are other shortcomings in the record based upon analysis of the proviso in G.L.c. 112, § 60L, cl. 8. It does not appear that a majority of the officers are registered architects or registered engineers, or that one officer is a registered architect, or that an officer who is a registered architect exercised professional or supervisory control over the services contracted for.
"While this matter has already been pending for an inordinate amount of time, we cannot grant or withhold summary judgment merely because it would save time or expense." American Manufacturers Mut. Ins. Co. v. American Bdcst.-Paramount Theatres, Inc. 388 F.2d 272, 285 (2d Cir.).
The cases are remanded to the Superior Court for further proceedings in accordance with this opinion.