Opinion
January 9, 1991.
Present: Turcotte, P.J., McGuane Dohoney, JJ.
Contract, For labor and materials.
Report of court's reversal of judgment for defendant and remand for entry of judgment for plaintiff and the scheduling of hearings on reasonable attorney's fees. Action heard in the Worcester Division by Sullivan, J.
Lucille B. Brennan for the plaintiff.
Gerald E. Shugrue for the defendant.
This matter is before the Appellate Division on the denial of several requests for rulings.
It results from an action of contract in which the plaintiff seeks to recover funds due for labor and materials pursuant to a contract for labor and materials executed between the parties to this action.
The answer filed by the defendant states that the funds are not due until certain wage affidavits are filed by the plaintiff.
The Court found for the defendant on the basis that the contract incorporated by reference certain terms which were included in Exhibit #3 and which required that wage affidavits be filed prior to payment by the defendant.
The issues raised by the defendant are the terms requiring that affidavits be filed prior to payment and the issue of whether such terms have been incorporated into the contract. The contract called for payment to plaintiff of $297,067.00 for said labor and materials. Further the Court found that payment was due (30) thirty days after delivery of the modular units, and further found that completed delivery was made on April 2, 1985.
The defendant has paid to the plaintiff $287,360.00 and a balance of $9,707.00 is due the plaintiff on the contract, plus interest at one and one-half percent per month and reasonable attorney's fees.
From the fact that the major part of the contract price was paid, it is clear that, even if the filing of wage affidavits is part of the contract, that provision was clearly waived by the defendant, by paying $287,360.00 toward the contract price of $297,067.00.
It further appears that the plans and specifications referred to in the contract are unambiguous and have a definite and accepted meaning and would not include all addendum and conditions attached thereto. Avant, Inc., v. Tech Ridge Inc., 4 Mass. App. Ct. 568 (573-74) 1976.
We further point out that the Trial Justice found that "payment was due (30) thirty days after delivery of the modular units" and that "plaintiff completed delivery of the modular units on or about April 21, 1985."
Upon all the findings in the Trial Justices report we find prejudicial error and remand said matter to the Trial Court for entry of Judgment for plaintiff and with further hearings on reasonable attorney's fees.