This bill for declaratory and other relief seeks a determination of whether a plumbing subcontractor was required to install certain internal piping in the construction of a building at the Massachusetts Institute of Technology (M I T). Both parties moved for a summary judgment pursuant to G.L.c. 231, § 59, as amended by St. 1965, c. 491, § 1. The plaintiff's motion was granted. Although the case was submitted on affidavits accompanying the motions, the judge, as requested by the defendant, made a report of material facts, based, apparently, on the affidavits. The defendant appealed from a decree awarding the plaintiff $18,484.60.
The facts are as follows. This dispute arose out of a written contract between the defendant and M I T entered into on September 23, 1963, for the construction of a Laboratory for the Life Sciences Building. Prior to that date, the defendant had received a bid from the plaintiff for
Specifications required the plumbing subcontractor to furnish "required valved water and gas, air and drain connections to ... fume hoods supplied under General Construction Section of Work... specified as an `allowance' item." The defendant was required by the specifications in the base contract to include a cash allowance of $122,000 in its general bid for fume hoods installed complete. At the time the bids were submitted the final design of the fume hoods had not yet been made. There were thus no drawings or specifications containing detailed information on the internal piping within the fume hoods. The only plans available showed rectangular boxes depicting the fume hoods; circles showing the outlets inside the hoods for water, gas, and air services; and parallel lines showing connections only to the outside of the hoods. Neither the fume hoods nor the outlets were to be furnished by the plaintiff.
In May of 1964 bids were invited on the subcontract for the construction of the fume hoods according to specifications then set out. These specifications did not include the internal piping for the hood. The plaintiff never saw this document until after the present dispute arose. On August 24, 1964, the defendant and another subcontractor, Kewanee Manufacturing Company (Kewanee) entered into a subcontract for the construction of the fume hoods as specified.
Early in 1965 a dispute arose between the plaintiff and the defendant as to whether the plaintiff was required to provide the internal piping within the hoods. The plaintiff refused to do the piping on the ground that its
In January, 1966, the plaintiff requested arbitration pursuant to art. XVII, named its arbitrator, but withdrew the request two days later without prejudice because the defendant's president and the arbitrator were leaving for vacation. In April the defendant wrote the architect requesting an interpretation of whether the internal piping "was a part of the base contract work... and whether ... if it was a part of the contract work [it] was included on account of the basic plumbing drawings and specifications." Although the architect's reply contained intimations that the plumbing specifications included the internal piping, he expressly refrained from allocating the responsibility for that work (among the subcontractors). His conclusion was merely that the original specifications "demonstrate the [o]wner's right to internal piping of the fume hoods." In September, the plaintiff renewed its arbitration request, but the defendant refused.
The defendant argues: (1) the record did not entitle the plaintiff to a summary judgment in its favor; and (2) the defendant was entitled either to a summary judgment, or a trial on the issue of the architect's decision.
1. The defendant contends that the record does not support a summary judgment in favor of the plaintiff because, first, it has failed to show that "no genuine issue of material fact exists," and second, its affidavit is not based "on personal knowledge of admissible facts as to which it appears affirmatively that the affiant would be competent to testify."
On the question of whether a genuine issue of material fact existed, the defendant argues that the meaning in the trade of the lines and symbols appearing in the plumbing plans created such an issue. An affidavit filed by the defendant asserted that the circles in the plans were valves, and not outlets as claimed by the plaintiff; further, that it is customary in developing plumbing drawings to omit lines showing "the direction and location of piping necessary to run from one point, depicted by a symbol, to another point." The defendant thus argues that in view of this alleged practice, and a mark in the plans alleged to be a valve, the plaintiff should have been aware that "valved ... connections ... to the fume hoods" included the internal piping. At the very least, the defendant is arguing that its affidavit has raised a genuine issue of fact about the meaning of those symbols that requires extrinsic evidence for its resolution.
Ordinarily the construction of the meaning intended by the words and symbols employed by the parties in committing their agreement to writing is a question of law.
The defendant's argument that the plaintiff's affidavit (made by its engineer, McKay) was defective because not made on personal knowledge is not persuasive. McKay's affidavit avers his engineering qualifications, his experience
2. The defendant also argues that the architect's interpretation of the specifications, duly alleged in its affidavit and uncontradicted by the plaintiff, requires summary judgment in its favor. Alternatively, it argues that this question at least raises an issue of material fact that bars summary judgment. Article 39 of § H, Part 1, of the Supplemental General Conditions (of the agreement between the defendant and the owner, which was incorporated in the agreement with the plaintiff) provided that "[t]he architect's decision shall be final in matters pertaining to interpretation of plans and specifications." The defendant alleges that after the dispute arose and the agreement with Kewanee was reached, "in the next four or five months," in conversation with the architect, it was told that the plumbing specifications covered the piping within the fume hoods. The defendant also alleges that a similar interpretation was given by the architect in a letter in April, 1966, after M I T took occupancy. Either of these events, it is argued, renders erroneous the decree in the plaintiff's favor.
The argument that the architect in the months after the dispute arose rendered a binding and effective interpretation which concluded the matter between the parties is without merit. It is clear that the question was not submitted to the architect as a dispute between the parties, nor does the defendant so contend. In addition, it is by no means clear that the architect had authority to settle disputes not interfering with work progress where, as here, responsibility for assigning work among subcontractors had been expressly excluded.
The judge did not err in granting the plaintiff's motion for a summary judgment, and in denying the defendant's motion.
The final decree is affirmed with costs of appeal.