Court: APPEALS COURT OF MASSACHUSETTS
Citation:44 Mass. App. Ct. 1111(1998)
Parties: WALLBOARD SUPPLY COMPANY, INC. v. CHARLES CONSTRUCTION CO., INC. & another [1]
Docket No.: 96-P-1531
Decision Date: JANUARY 28, 1998
Judges: KASS, SMITH, FLANNERY, JJ.

MEMORANDUM AND ORDER UNDER RULE 1:28

The plaintiff, Wallboard Supply Company (Wallboard), brought a complaint against the defendants Charles Construction Company (Charles) and Federal Insurance Company (Federal) seeking payment pursuant to G. L. c. 149, s. 29, for materials supplied to Star Drywall & Painting Co., Inc. (Star). Charles had entered into a subcontract with Star for the drywall construction required under Charles's general contract to construct two schools in Haverhill. Wallboard, in turn, furnished Star with drywall materials. Charles, as principal, and Federal, as surety, had executed a bond securing payment for labor and materials used or reasonably required for use in the project.

The last date on which Wallboard furnished drywall materials to Star on both schools was February 23, 1993. On March 26, 1993, Wallboard sent Charles a statement of its claims for the drywall materials furnished to Star for the two schools. On May 23, 1993, Wallboard initiated this action.

Wallboard filed a motion for summary judgment against Charles and Federal. A Superior Court judge granted partial summary judgment, ruling that Wallboard had established, as matter of law, that it satisfied the notice requirements essential for recovery. The judge concluded that there existed a general issue of material fact whether the materials Wallboard provided were actually used in the construction of the schools. After a jury-waived trial on that issue, a judge ruled in favor of Wallboard.

The notice issue is controlled by Westinghouse Elec. Corp. v. J.J. Grace & Sons, 349 Mass. 664, 667-668 (1965). In that matter, the court stated that, "[e]ven assuming that the parties did not have a single contract covering all their transactions, the record shows a continuing series of orders for a particular construction project." Id. at 668.

The defendants' argument that Wallboard was not the exclusive provider of drywall materials and, therefore, a series of separate purchases cannot add up to a single contract, is without merit. Nothing in the Westinghouse decision requires exclusivity. We have reviewed the second issue and find it to be without merit.

Judgments Affirmed.

End of Decision

1. Federal Insurance Company.