MILLER FENCE COMPANY v. VINCENT GENCARELLI

DESPOTOPULOS, J. On July 25, 2011, the plaintiff, Miller Fence Company (“Miller”), filed a one-count complaint in the Worcester District Court against the defendant, Vincent Gencarelli (“Gencarelli”), alleging a breach of contract. The matter was tried on February 5, 2013, without a jury. The trial judge awarded judgment in the amount of $8,999.00, plus interest and costs, in favor of Miller. The court also awarded judgment in favor of Miller on Gencarelli’s counterclaim. Gencarelli appealed.

Gencarelli failed to file proposed findings and rulings pursuant to Mass. R. Civ. P. 52(c)-(d). Therefore, we are without the benefit of the trial judge’s specific findings of fact and conclusions of law. We thus recite the facts the judge could have found based on the trial testimony and the exhibits in the record.

On July 17, 2006, the parties signed a written agreement. Pursuant to this agreement, Miller was to erect an 8 feet high, 1,000 feet long fence, with 400 privacy slats and 3,000 feet of barbed wire, including arms for the wire. The stated price was $24,999.00. Gencarelli initially paid Miller $16,000.00, leaving a balance of $8,999.00 due upon completion. The agreement stated that the price did not include the cost of “clearing trees, brush or other obstructions from working area.” The agreement made no provision for gates in the fence. The parties orally agreed, however, that Miller would install chain-link gates that Gencarelli had in storage at another location. Gencarelli obtained a permit for the erection of the fence from the city of Worcester. Miller had no involvement in this.

Miller began working on the fence during the summer of 2006. Miller encountered trees, brush, and a stone wall at the location where Gencarelli wanted the fence to be erected. Gencarelli directed Miller to clear the trees and brush and to remove the stone wall. Even though these tasks were specifically excluded from the written agreement, at Gencarelli’s request, Miller orally agreed to perform this additional work. Miller used a “Bobcat” it owned for two days to accomplish this work. At Gencarelli’s request, and pursuant to an order from a State agency, Miller also removed and relocated some cement posts it had installed in what was later identified as a wetland. Although the parties had not discussed the issue when the written agreement between them

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was executed, Miller had assumed the gates would be delivered to the work site by Gencarelli. Ultimately, Miller personnel expended time picking up Gencarelli’s gates from an off-site storage facility.

By October, 2006, Miller had erected the fence, but had not installed any barbed wire or privacy slats. These items were not completed because on October 18, 2006, the city of Worcester issued a cease-and-desist order to Gencarelli and revoked his permit for the fence. Pursuant to a subsequent order from the city of Worcester, the fence was ultimately removed. Miller was not responsible for the issuance of the cease-and-desist order, or the revocation of the permit, or the removal of the fence.

Miller gave Gencarelli a credit of $2,422.00, reflecting the material charges for the barbed wire and privacy slats that it did not provide but had included in the contract price.

In the course of discussions between the parties prior to the execution of their written agreement, Miller had informed Gencarelli that the daily rate the company charged for the Bobcat was $500.00. Miller incurred $1,100.00 in charges for the additional labor that was required to remove trees, bushes, and rock and to relocate cement posts. Finally, Miller charged Gencarelli $400.00 for transporting Gencarelli’s gates to the work site.

In this appeal, Gencarelli’s sole argument is that the trial judge erred when he found for Miller on a theory of recovery based on quantum meruit, where Miller’s one-count complaint alleged only a breach of contract. “To achieve recovery upon the theory of quantum merit, the claimant must prove (1) that it conferred a measurable benefit upon the defendant[]; (2) that the claimant reasonably expected compensation from the defendant[]; and (3) that the defendant[] accepted the benefit with the knowledge, actual or chargeable, of the claimant’s reasonable expectation.” Finard & Co. v. Sitt Asset Mgt., 79 Mass. App. Ct. 226, 229 (2011). Recovery in quantum meruit presupposes that no valid contract covers the subject matter of a dispute. Boswell v. Zephyr Lines, Inc., 414 Mass. 241, 250 (1993).

In brief, we agree with Gencarelli’s basic premise -- that a party cannot obtain a recovery based on quantum meruit if it brings an action alleging only a breach of contract claim, and does not obtain leave to amend its complaint. “Quantum meruit is a theory of recovery, not a cause of action. It is a claim independent of an assertion for damages under the contract although both claims have as a common basis the contract itself. Recovery under this theory is derived from the principles of equity and fairness and is allowed where there is substantial performance but not full completion of the contract.” J. A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 793 (1986). “While a party does not recover on the contract itself under quantum meruit, a court may look to the terms of the underlying contract to help determine appropriate recovery under quantum meruit.” Finard & Co., supra at 229, quoting Liss v. Studeny, 450 Mass. 473, 479-480 (2008).

A contract is a legally enforceable promise or set of promises. In order for a promise or set of promises to be legally enforceable, there must be an offer and acceptance, consideration, and mutual assent. These requirements may be found in the surrounding circumstances, including the parties’ words and

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actions, what they wanted to accomplish, and the way they dealt with each other. See Vasconcellos v. Arbella Mut. Ins. Co., 67 Mass. App. Ct. 277, 280 (2006); Restatement (Second) of Contracts § 1, at 5 (1981). In addition, “[i]t is settled that ordinarily a written contract, before breach, may be varied by subsequent oral agreement made on sufficient consideration.” Costonis v. Medford Hous. Auth., 343 Mass. 108, 113 (1961).

A party is not required in its pleadings to state what ultimately turns out to be the correct theory applicable to the case. Gallant v. City of Worcester, 383 Mass. 707, 709 (1981). “[T]he primary function of pleading is not to formulate the precise issues for trial but rather to give fair notice of the claims and defenses of the parties.” Reporter’s Notes to Mass. R. Civ. P. 8. Generally, “[u]nless a theory of recovery is disclosed in the pleadings or is tried by the express or implied consent of the parties, a court may not base its decision thereon.” Harrington-McGill v. Old Mother Hubbard Dog Food Co., 22 Mass. App. Ct. 966, 968 (1986). Here, Miller filed a one-count complaint alleging a breach of contract. The parties tried the case on that issue only. Neither party raised the issue of quantum meruit in pleadings, at trial, or during opening or closing statements. Had they done so, it would have cured and preserved the claim and issues.

In this case, based on the evidence and the pleadings, we find that there were sufficient facts to justify a judgment against Gencarelli on Miller’s breach of contract claim. At the same time, we find that a component of the damages award was made in quantum meruit. This was error because, as noted above, Miller neither pleaded this theory nor argued it at trial. Specifically, the balance due on the contract price was $8,999.00, to be paid on completion. Completion was not possible due to the cease-and-desist order. A credit of $2,422.00 was given, leaving a balance of $6,577.00 on the contract. With regard to the additional $1,100.00 in labor that was expended, the $1,000.00 charge for the use of the Bobcat, and the $400.00 charge for transporting gates, Gencarelli directed Miller to perform the tasks that gave rise to these expenditures, Miller performed the tasks, and Miller expected to be paid. These circumstances may certainly be sufficient to support a claim in quantum meruit, but they are insufficient to support a finding of breach of an oral or written contract.

In light of the above, we affirm the trial judge’s decision to award judgment to Miller on its breach of contract claim, but reverse the decision as to the amount of damages. We return the case to the Worcester District Court for entry of judgment in favor of Miller in the amount of $6,577.00, plus interest and costs.