Preview
#24 Filed 06/02/2021
COMMONWEALTH OF MASSACHUSETTS
NANTUCKET, ss. SUPERIOR COURT DEPT.
OF THE TRIAL COURT
C. A. NO. 1975CV00002
JIBO & COMPANY, INC.,
Plaintiff and Defendant-
In-Counterclaim,
vs.
RYAN A. DUDDY
Defendant and
Counterclaimant,
and
ERICA D. DUDDY,
Defendant.
POST-TRIAL MEMORANDUM OF THE PLAINTIFF
This Memorandum is submitted on behalf of the plaintiff, Jibo & Company, Inc.
(“Jibo”), pursuant to the court’s request to the parties at the close of the evidence. The
recitation of the evidence is based on notes taken during the course of the trial and counsel’s
memory of the testimony.
I Evidence at Trial
a. Contract Formation
Suffice it to state that there was decidedly conflicting evidence as to the formation
ofa contract for the performance of work on the Duddy residence located at 1 Monohansett
Road, Nantucket, Massachusetts (the “Duddy Residence”). The testimony of the plaintiffs
principal, Irakli Jibladze (“Jibladze”), was that his interest in the project was solicited by
the defendant, Ryan A. Duddy, that he visited the project then under construction and
cursorily reviewed the architectural plans (Exhibit A). Jibo ultimately agreed to furnish
carpentry services to Duddy at the Duddy Residence. Jibladze’s testimony was that he told
Duddy that he would save Duddy what he could, including by giving Duddy the benefit of
a discount on 5/8" thick butt Alaskan yellow cedar shingles that Jibo had previously
purchased from Shepley Wood Products. He also agreed to furnish other materials that Jibo
had in inventory. The ultimate agreement, according to Jibladze, was that Jibo would
supply materials left over from prior projects from its inventory. Everything else that
needed to be purchased would be purchased at retail prices ordered on the account of the
general contractor, Clarke Brothers Construction, or on Duddy’s account. Jibo was to
furnish and install the Alaskan yellow cedar roofing work, roofing under a widow’s walk,
roofing under a second-floor deck, some flashing work and sidewall work including cottage
corners. Jibo had previously installed granulated ice and water shield over the entire roof
area at Duddy’s request to “dry in” the building and permit the installation of the windows
and other work on the residence. Per Jibladze, there was no discussion of prices, only that
Jibo would save Duddy as much as possible.
Ryan Duddy’s markedly different version of the events was that, after a chance
encounter with Jibladze, whom he knew slightly, they discussed Jibo’s doing work on the
project and ultimately agreed that Jibo would install the Alaskan yellow cedar roof
shingles, roofing under a widow’s walk, roofing under a second-floor deck, some flashing
work and sidewall work including cottage corners for the fixed price of $55,000, which
was to include all of the materials needed to do the work. Jibladze denied ever having made
such an agreement with Duddy as the materials alone would cost almost $50,000.
Things are apparently done differently on Nantucket. While it may be surprising
that no written memorandum was made of the agreement between Jibo and Duddy, there
was not even a contract between Duddy and the builder constructing his house. Nor were
there subcontracts between Jibo and the various subcontractors that Jibo used. Nor were
there invoices submitted by and between any of the parties involved in the construction of
the residence while construction was ongoing. The net result of the conflicting testimony
and the lack of writings is that it is impossible to prove that there was any “meeting of the
minds.” In the absence of proof of a contract, the plaintiff should still be able to recover
for the reasonable value of his services under the doctrine of quantum meruit. Liss v.
Studeny, 450 Mass. 473, 479-82 (2008); Salamon v. Terra, 394 Mass. 857 (1985).
b. Contract Performance
Whatever the agreement of the parties was or was not, Jibo performed the work.
The request to install the granulated ice and water shield over the entire roof area prior to
installing the shingles was an unusual request that added labor costs to the project.
Accordingly, Jibladze asked the subcontractor performing that work to keep track of the
hours spent doing so and was informed that the work had required 118 hours of labor. At
the time Jibo ceased work on the project, the ice and water Shield was fully complete.
(Stipulated Fact No. 18).
All of the other work items were completed during the summer of 2018 except for
approximately two squares (200 square feet) of siding shingles that could not be installed
until a door and trim that Duddy was waiting for was installed. (Duddy was actually
charged for six squares by the contractor that completed that work (see Exhibit Q), which
Duddy conceded was an overcharge as Duddy, himself, computed the un-shingled area at
two squares during the trial).
It was stipulated that Jibo furnished 299 bundles of Alaskan yellow cedar shingles
at a cost to Jibo of $54.32 per bundle or $16,241.68. (Stipulated Facts No. 9). Of the 299
bundles that were furnished, 289 bundles were installed by Jibo on the Duddy residence
roof. Assuming a 5-1/2” exposure of the Alaskan yellow cedar shingles, it was Jibladze’s
testimony that it requires 6.8 bundles of Alaskan yellow cedar shingles to install one square
(100 square feet). Dividing 289 bundles by 6.8 results in 42.50 squares, which corroborates
Jibladze’s estimate of the 42.50 squares on the Duddy residence roof with an allowance for
waste.' Carl Clarke, who testified that he did “some measurements,” thought the roof had
an area of 32 to 34 squares but did not include an allowance for waste. Christopher Skehel,
1. The Shepley invoices for the Alaskan yellow cedar shingles notes that “7.0 Bundles Cover 100
SqFt @ 5-1/2” Exposure” (See Exhibits B through F). Using 7 bundles per square instead of 6.8
would reduce the estimated roof coverage from 42.50 to 41.29, a miniscule difference in this
context.
the defendant’s expert witness, testified that the roof had an area of 32 squares based on
his physical measurement of 30% of the roof area, but also did not include waste in his
calculations. Jibo also installed roof ridge caps on the Duddy residence roof. In any event,
at the time Jibo ceased work on the project, the Alaskan yellow cedar shingle roofing was
fully complete. (Stipulated Fact No. 19).
At the time Jibo ceased work on the project, the bright copper flashing and lead
flashing were fully complete. (Stipulated Fact No. 20).
At the time Jibo ceased work on the project, the EPDM roofing membrane under
the widow’s walk portion of the residence was fully complete. (Stipulated Fact No. 21).
At the time Jibo ceased work on the project, the EPDM roofing membrane at the
second-floor deck of the residence was fully complete. (Stipulated Fact No. 22).
At the time Jibo ceased work on the project, the cottage corners were complete
except for about 12 linear feet. (Stipulated Fact No. 23).
ce. Contract Termination
On August 2, 2018, at a meeting between Duddy and Jibladze, Duddy inquired as
to what were the charges for the work performed by Jibo on the Duddy residence to that
date. Jibladze informed Duddy that the charges were approximately $86,000 to that date.
Duddy was very upset by that information and informed Jibladze that he would not pay
that amount, insisting that the parties had agreed to a lump sum price of $55,000 for all of
the labor and materials. According to Duddy’s testimony at trial, Jibladze denied that there
was any such agreement at the August 2" meeting. After Duddy refused to make payment
to Jibo on August 2, 2018, Jibo did not return to project. (Stipulated Fact No. 17).
d. Jibo & Company, Inc. Invoice #221
Jibladze emailed Jibo & Company, Inc. Invoice #221 to Duddy on September 19,
2018. (Stipulated Fact No. 15 and Exhibit I). Duddy refused to pay Invoice #221 and has
made no payment to date to Jibo against Invoice #221. (Stipulated Fact No. 16). The
invoice is in the amount of $93,889.50. (Exhibit I). It is broken down into five general
items, as follows:
Install Ice & Water Shield to dry in the building. As noted above, Duddy requested
Jibo to “dry in” the building and permit the installation of the windows and other work on
the residence. As testified by Jibladze, Duddy suggested the use of tar paper; Jibladze
recommended granulated ice and water shield based on the building’s exposure to the
prevailing southwesterly winds. Jibo’s subcontractor installed 25 rolls of the ice and water
shield which required 118 hours as tracked by the subcontractor. Jibo charged Duddy for
the 118 hours at $55.00 per hour or $6,490.00 and for the 25 rolls at $92.00 per roll or
$2,300.00 for a total of $8,790.00. Jibladze testified that the $55.00 per hour was a
reasonable labor rate for Nantucket in 2018, that the material charge was at cost and that
the total charge for the ice and water shield was fair and reasonable.
Alaskan yellow cedar shingles. Jibo billed the labor to install 289 bundles of the
Alaskan yellow cedar shingles at $85.00 per bundle or $24,565.00. (Jibladze testified that
the notation “Labor: 289 install hours @ $85/bundle” was a typographical error and that it
should have read “Labor: 289 bundles @ $85/bundle.” After Duddy refused to make any
payment, Jibo charged the 299 bundles that it delivered at a retail price of $88.00 per bundle
or $26,312.00. Jibo also charged Duddy $1,750.00 for the installation of ridge caps on the
roof. The total amount charged by Jibo for the Alaskan yellow cedar shingles and ridge
caps was $52,627.00.
Flashing. Jibo charged Duddy $4,500.00 to install bright copper flashing which
work was performed by Jibo’s subcontractor. Jibo supplied 15.50 sheets of bright copper
flashing @ $155.00 per sheet or $2,402.50, which was the cost of that material in 2018,
although it is presently much higher. The total amount charged by Jibo for the flashing was
$6,902.50. Jibladze testified that the total charge for the flashing was fair and reasonable.
EPDM Roofing. The EPDM or membrane roofing was installed by Jibo under the
widow’s walk and under a second-floor deck. Jibo charged $2,500 for the widow’s walk
and $2,000 for the second-floor deck. Jibladze testified that the total charge for the EPDM
roofing was fair and reasonable.
Sidewall. Jibo installed 34 squares of white cedar sidewall shingles. That required
four bundles per square or 136 bundles. Of that amount, Clarke Brothers ordered 100
bundles at Jibladze’s request from Shepley for which Clarke Brothers (and ultimately
Duddy) paid $83.11 per bundle, including sales tax. (See Exhibit M). Jibo supplied 9
squares or 36 bundles for which Jibo invoiced Duddy at $280.00 per square or $70.00 per
bundle. (Exhibit I). Given that all the sidewall shingles were used, 136 bundles at four
bundles per square results in an estimate of 34 squares which includes an allowance for
waste. Carl Clarke testified that there were 28 to 29 squares of sidewall, based on his
measurements, which did not include an allowance for waste. Christopher Skehel testified
that there were 24.5 squares of sidewall based on his physical measurements of 98% of the
sidewall area, although he apparently made no allowance for double courses, starter
courses, cuts and waste.
Jibo invoiced Duddy for labor to install the 34 squares at $450 per square or
$15,300.00. (Exhibit I). Carl Clarke testified that he regularly pays about $350.00 per
square to install sidewall shingles but never more than $375.00 per square. F&B
Construction, who completed the sidewall shingling on the Duddy residence, charged
Duddy for six squares of shingling labor at $285.00 per square, although they overcharged
the shingling by 300% as there were only two squares left un-shingled while waiting for a
door and trim to be installed.”
Jibladze testified that the charges of $93,889.50 for the work listed on Invoice #221
were fair and reasonable charges for the work.
Christopher Skehel testified that the fair market value for the labor and materials
furnished by Jibo was $36,000. That did not include the flashing or the EPDM roofing as
to which Skehel had not formed an opinion.
Ryan Duddy, when asked how much he owed Jibo, answered “$44,000 or so”,
presumably the difference between the $55,000.00 he says he agreed to pay, less the
$11,466 in materials that Clarke Brothers ordered at Jibo’s request (see Exhibits J through
2. If F&B had not inflated the amount of sidewall area in its invoice (Exhibit Q), the unit price
per square actually installed would have been $855.00 per square, almost double the unit price of
$450.00 charged by Jibo in its invoice (Exhibit I).
M) and the $1,950.00 that he paid to F&B Construction, although he acknowledged being
overcharged four squares at $285.00 per square or $1,140.00 (see Exhibit Q). F&B’s
invoice should have been in the amount of $810.00 (2 squares @ $285.00 per square and
$240.00 for the cottage corners). Duddy would therefore owe Jibo $42,724.00 ($55,000.00
minus $11,466.00 minus $810.00), if the court accepts Duddy’s version of events.
Jibo denies responsibility for the materials ordered at his request by Clarke Brothers
as he testified that Clarke Brothers’ purchase of needed materials was part of the
arrangement from the outset. Jibo also denies responsibility for the costs incurred to F&B
Construction to complete the sidewall work and cottage corners as Jibo did not perform
that work, nor did it charge Duddy for it.
e uantum Meruit Measure of Damages
In recognition of the possibility that the plaintiff's recovery in this action may be
limited to a quantum meruit recovery, the plaintiff presented evidence of how such a
recovery could be measured. In particular, the plaintiff presented evidence of how many
hours it would require installing the Alaskan yellow cedar roof shingles and the siding
shingles and what a reasonable labor rate would be for those hours.
With respect to the roof shingles, of which 289 bundles were installed, the evidence
was that it requires 6.8 bundles to install one square (100 square feet); that 289 bundles
would therefore cover 42.50 squares; that it takes a carpenter seven hours to install a square;
that 42.50 squares would therefore require 297.50 hours to install; and at a rate of $55.00
per hour, which Jibladze testified was the bare minimum rate for the work, the reasonable
value of that labor would be $16,362.50. The foregoing is recapitulated in Exhibit V which
constitutes a recalculation of Invoice #221 (Exhibit I). In Exhibit V, Duddy is given the
benefit of Jibo’s discount purchase of the roof shingles at $54.32 per bundle. The
calculation of the value of the ridge cap installation is unchanged. The total of the roof
shingling is thereby decreased from $52,627.00 to $34,354.18. Jibladze testified that there
would be no profit to him at that number.
3. Although the Defendants’ Proposed Rulings of Law cite various cases for the proposition that
a quantum meruit recovery cannot include profit, it is submitted that the cases cited do not so
With respect to the siding shingles, the testimony by Jibladze was similar. He
installed 34 squares of siding shingles. It takes a carpenter seven hours to install one square;
the 34 squares would therefore require 238 hours to install; and at a rate of $55.00 per hour,
which Jibladze again testified was the bare minimum rate for the work, the reasonable
value of that labor would be $13,090.00, a reduction from the $15,300.00 charged for
shingling labor in Invoice #221. The cottage corners were charged at the same rate of
$25.00 per linear foot times 130 linear feet or $3,250.00. (F&B Construction charged
$20.00 per linear foot (Exhibit Q)). The 36 bundles of shingles furnished by Jibo were
charged at the same rate of $70.00 per bundle (less than the $83.11 per bundle that Clarke
Brothers paid for the same product). The total for the sidewall shingling on Exhibit V is
$18,860.00. Jibladze testified that there would be no profit to him at that number.
The three other items in Invoice #221 remain unchanged in Exhibit V. The ice and
water shield materials were billed at Jibo’s cost of $92.00 per roll for 25 rolls. The labor
charge was based on hours reported by the subcontractor that performed the work at the,
again, reasonable rate of $55.00 per hour. The flashing number, the labor for which was
performed by a subcontractor, remained unchanged at $6,902.50. The EPDM roofing at
the widow’s walk and second-floor deck remain unchanged at $4,500.00. The total value
of the labor and materials as shown on Exhibit V is $73,406.68. Again, Jibladze testified
that there would be no profit to him in a recovery at that number.
hold. The decision in Incase Inc. v. Timex Corp., 488 F.3d 46, 54 (1st Cir. 2007) held that a
quantum meruit recovery could not be based solely on lost profits. Peabody N.E., Inc. v.
Marshfield, 426 Mass. 436, 442 (1998) excluded the consideration of field overhead and home
office overhead in a quantum meruit recovery. The case of Mass. Eye & Ear Infirmary v. OLT
Phototherapeutics, Inc., 552 F.3d 47, 67 (1st Cir. 2009) dealt with intellectual property and
royalties and is inapposite. Fraser & Wise, P.C. v. Primarily Primates, Inc., 966 F. Supp. 63, 78
(D. Mass. 1996) dealt with the value of attorney’s fees and is inapposite. Section 344 of the
Restatement of Contracts (Second), which is captioned “Purposes of Remedies,” deals with
damage calculations for breach of contract, not quantum meruit. If the measure of damages in
quantum meruit is based on the reasonable value of the labor and services rendered, wouldn’t
that value include a reasonable amount of profit that a reasonable contractor would charge? The
issue is, perhaps, moot, as Jibladze testified that there would be no profit to him in a recovery
based on Exhibit V.
Certainly, there was conflicting testimony. Carl Clarke testified that he pays his
carpenters between $20.00 and $40.00 per hour but conceded that those rates did not
include mandatory employment taxes (FICA and Medicare at 7.65%) and workers’
ompensation insurance. Then again, Mr. Clarke testified that he never pays for shingling
by the hour. Mr. Skehel testified that a carpenter should be able to install two squares of
roof or siding shingles in eight hours. If one credits Mr. Skehel’s testimony that a carpenter
can install two squares of shingles in eight hours (or one square every four hours), and if
one credits Carl Clarke’s testimony that he pays $350.00 per square to install shingles, then
Clarke Brothers must be paying its carpenters at the rate of $87.50 per hour ($350.00
divided by four), not $20.00 to $40.00 per hour. The credibility of the witnesses is for the
court to determine, but it is submitted that the defendants’ witnesses’ testimony was
inconsistent.
f. Erica Duddy
Erica Duddy testified that she has been married to Ryan Duddy at all times material
to the action; that they purchased the real estate at One Monohansett Road with the
intention of building a house on it; that she knew that Ryan engaged the services of Clarke
Brothers Construction to build a house on the real estate; that she knew that Ryan made
other arrangements for the construction of the house with her consent; and that she enjoyed
the house and living in it.
g. The Duddy Counterclaim
Ryan Duddy has asserted a counterclaim for the cost of the materials ordered by
Clarke Brothers Construction from Shepley Wood Products at the request of Jibo. The
evidence was that the agreement of the parties was that Jibo would supply materials left
over from prior projects from its inventory and everything else that needed to be purchased
would be purchased at retail prices ordered on the account of Clarke Brothers Construction
or on Duddy’s account. Jibo had no authority to order materials on the Clarke Brothers
account at Shepley or at any other supplier and Jibo did not order the materials. Jibo should
not be held liable for the cost of those materials.
The counterclaim also seeks the recovery of the $1,950.00 charged by F&B
Construction for shingling six squares of sidewall at $285.00 per square and 12 linear feet
of cottage corners at $20.00 per linear foot. Aside from the fact that Duddy was charged
for four squares of shingles that F&B did not install, Jibo never charged Duddy for the
work actually done by F&B and should not be held liable to pay for it.
IL. Rulings of Law
Q) A contract is formed by an offer and acceptance, setting forth with certainty
the material rights and obligations of the parties. In order to prove the existence of a
contract with the defendant, the plaintiff must prove each of the following three elements
by a preponderance of the evidence: that an offer was made; that the offer was accepted;
and that the plaintiff and the defendant each gave up something of value, or promised to
give up something of value. Cygan v. Megathlin, 326 Mass. 732, 733-34 (1951). There was
ample evidence that an offer was made by Jibo, accepted by Duddy, that Jibo gave up
something of value (the work) and that Duddy promised to pay for it.
(2) An offer may be made orally or in writing, or even by a person’s conduct.
What is important is that the offer be made in such a way as to justify another person in
understanding that the acceptance of the bargain will bind both parties to the terms of the
offer. Chicopee Concrete Service, Inc. v. Hart Engineering Co., 20 Mass.App.Ct. 315, 318
(1985). It should have been abundantly clear to Duddy that both parties were bound by
obligations of their contractual relationship. Jibo was bound to perform the work, Duddy
was bound to pay for it.
G3) To recover for a breach of contract, the plaintiff must establish his material
performance of all obligations under the contract or demonstrate that he is excused from
performance. A material breach of the contract by one party excuses further performance
by the nonbreaching party. Lease-I/t, Inc. v. Mass. Port Authority, 33 Mass.App.Ct. 391,
397 (1992). Jibo completed all but two squares of shingles that could not be completed
until a door was installed by others and 12 linear feet of adjacent cottage corners which he
failed to complete only after Duddy refused to make any payment.
10
(4) If the plaintiff has not proven a contract, the plaintiff may still be able to
recover for the reasonable value of his services to the defendant under the legal doctrine of
“quantum meruit.” This doctrine allows recovery under an implied contract to compensate
for the reasonable value of services rendered. It is based on the concept that no one who
benefits by the labor and materials of another should be unjustly enriched. Under those
circumstances, the law implies a promise to pay a reasonable amount for the services and
materials furnished, even if there is no specific contract. Liss v. Studeny, 450 Mass. 473,
479-82 (2008); Salamon v. Terra, 394 Mass. 857 (1985). In the absence of a finding that
a contract was made between the parties, the doctrine of quantum meruit should clearly
apply to the facts of the case.
6) In order to recover under the doctrine of quantum meruit, the plaintiff must
prove the following by a preponderance of the evidence:
a. that the plaintiff in fact rendered services or furnished materials to the defendant;
b. that the plaintiff rendered services or furnished materials with the reasonable
expectation of being paid by the defendant; and
c. that the defendant, having reason to believe that the plaintiff was acting with the
expectation of being paid, permitted plaintiff to act without objection.
Therrian v. LeBlanc, 282 Mass. 328 (1933). That all of the above requirements were met
was established by a preponderance of the evidence.
(6) The plaintiffs damages in quantum meruit are the reasonable market value
of services and materials rendered at the time they were rendered, less payments, if any,
already made by the defendant to the plaintiff. Lease-It, Inc. v. Mass. Port Authority, 33
Mass.App.Ct. 391, 397 (1992). As no payments were made by Duddy to Jibo, the measure
of Jibo’s damages is the reasonable market value of services and materials rendered at the
time they were rendered.
) Quantum meruit damages must be proven with a reasonable degree of
certainty. Any damages that the plaintiff claims to have suffered, including any
compensatory damages, must be computed by rational methods upon a firm factual basis.
In order to recover damages, the plaintiff must establish that his damages are ascertainable
11
by reference to some definite standard, either of market value, established experience, or
direct inferences from known circumstances. However, a mathematical certainty in
measuring damages is not a requirement for the plaintiff to receive an award of damages.
Much of the determination of damages is left to sound discretion. Kobayashi y. Orion
Ventures, Inc., 42 Mass.App.Ct. 492, 500 (1997); Fernandes v. Union Bookbinding Co.,
400 Mass. 27, 37-38 (1987); Sackett v. St. Mary's Church Society, 18 Mass.App.Ct. 186
(1984); John Hetherington & Sons, Ltd. V. William Firth Co., 210 Mass 8, 21-22 (1911);
Don v. Soo Hoo, 75 Mass.App.Ct. 80, 85 (2009). It is submitted that the evidence
established with reasonable certainty the fair market value of the labor, material and
services provided by Jibo, which is also in the sound discretion of the court to assess.
(8) The question of what is fair and reasonable compensation for services
rendered is a question of fact. An award need not be susceptible of calculation with
mathematical exactness, provided there is a sufficient foundation for a rational conclusion.
Where the court cannot estimate the value of the services from common knowledge, the
plaintiff must present evidence of the reasonable value of the services. The amount of
recovery on a claim based in quantum meruit is the fair and reasonable value of material
and labor supplied to the benefiting party. Zncase Inc. v. Timex Corp., 488 F.3d 46, 54
(2007).
(9) Inherent Agency Power. “The term ‘inherent agency power’ has been used
by some courts, although not explicitly by the intermediate appellate court and supreme
court in Massachusetts, but the concept underlying the term, i.e., fixing liability upon the
principal for acts of an agent not actually or apparently authorized, has long been
established in the law. The liability is ‘status-based’ rather than ‘authority-based,’ in that
it depends on the relationship between the agent, the principal, and the acts at issue. It is a
non-authority based vicarious liability resting on the policy that it is fair that a business
enterprise should bear losses which are incurred when its general agent, although without
authority to do so, does something which is usually done in connection with the
transactions he is employed to conduct.” 14 Mass. Prac., §1.26 (5th ed.) It is submitted that
the concept of “inherent agency power” should apply in this case. The evidence was that
12
Erica Duddy was a co-owner of the Property at all times material to the case, that she and
Ryan Duddy purchased the real estate with the intention of building a house on it; that she
knew that Ryan engaged the services of Clarke Brothers Construction to build a house on
the real estate; that she knew that Ryan made other arrangements for the construction of
the house with her consent; and that she enjoyed the house and living in it. Ryan had
inherent agency power to bind her to the terms of the contract and to pay the fair value of
the labor, material and services she received as a result of Ryan’s efforts on her behalf.
Til. Conclusions
Q) Based upon the totality of the evidence, the court may find that there was a
contract between Ryan A. Duddy and Jibo & Company, Inc. The scope of the contract was
fairly certain and the price was going to be a function of the cost of the work once it was
determined.
(2) In the absence of a “meeting of the minds,” the plaintiff may recover in
quantum meruit for the reasonable value of the labor and materials that it furnished.
Jibladze testified that the $93,889.50 that was charged on Invoice #221 was the fair and
reasonable value of the labor and materials that Jibo furnished to the Duddys.
G) In the alternative, the court may find that the reasonable value of the labor
and materials that Jibo furnished to the Duddys is set forth with reasonable accuracy in
Exhibit V in the amount of $73,406.68.
(4) In the context of a finding based on quantum meruit, judgment should enter
against Ryan A. Duddy and Erica D. Duddy jointly and severally.
(5) If judgment is based on a contract between the parties, interest on the
judgment should be calculated from the date of Invoice #221 (Exhibit I) which is
September 18, 2018, as the invoice constitutes a “demand” under G.L. ch. 231, §6C.
(6) If judgment is based on quantum meruit, interest on the judgment should be
calculated from the date of the commencement of the action on January 17, 2019.
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For the plaintiff,
Jibo & Company, Inc.,
By its attorneys,
Law Offices of Warren H. Brodie, P.C.,
By:s/Qarren H Bradie
WARREN H. BRODIE
BBO # 058000
2 Salt Hay Road
Waquoit, MA 02536
(774) 763-2951
Email: wbrodie@whbrodielaw.com
CERTIFICATE OF SERVICE
hereby certify that a true copy of the above document was served upon all attorneys
of record by mailing copies of same by electronic mail on June 2, 2021 to:
Stephen P. Griffin, Esq.
spg@griffinlaw.com
224 Clarendon Street, Suite 32
Boston, MA 02116
Wanen Hb Brodie
WARREN H. BRODIE
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#24 Filed 06/02/2021 COMMONWEALTH OF MASSACHUSETTS NANTUCKET, ss. SUPERIOR COURT DEPT. OF THE TRIAL COURT C. A. NO. 1975CV00002 JIBO & COMPANY, INC., Plaintiff and Defendant- In-Counterclaim, vs. RYAN A. DUDDY Defendant and Counterclaimant, and ERICA D. DUDDY, Defendant. POST-TRIAL MEMORANDUM OF THE PLAINTIFF This Memorandum is submitted on behalf of the plaintiff, Jibo & Company, Inc. (“Jibo”), pursuant to the court’s request to the parties at the close of the evidence. The recitation of the evidence is based on notes taken during the course of the trial and counsel’s memory of the testimony. I Evidence at Trial a. Contract Formation Suffice it to state that there was decidedly conflicting evidence as to the formation ofa contract for the performance of work on the Duddy residence located at 1 Monohansett Road, Nantucket, Massachusetts (the “Duddy Residence”). The testimony of the plaintiffs principal, Irakli Jibladze (“Jibladze”), was that his interest in the project was solicited by the defendant, Ryan A. Duddy, that he visited the project then under construction and cursorily reviewed the architectural plans (Exhibit A). Jibo ultimately agreed to furnish carpentry services to Duddy at the Duddy Residence. Jibladze’s testimony was that he told Duddy that he would save Duddy what he could, including by giving Duddy the benefit of a discount on 5/8" thick butt Alaskan yellow cedar shingles that Jibo had previously purchased from Shepley Wood Products. He also agreed to furnish other materials that Jibo had in inventory. The ultimate agreement, according to Jibladze, was that Jibo would supply materials left over from prior projects from its inventory. Everything else that needed to be purchased would be purchased at retail prices ordered on the account of the general contractor, Clarke Brothers Construction, or on Duddy’s account. Jibo was to furnish and install the Alaskan yellow cedar roofing work, roofing under a widow’s walk, roofing under a second-floor deck, some flashing work and sidewall work including cottage corners. Jibo had previously installed granulated ice and water shield over the entire roof area at Duddy’s request to “dry in” the building and permit the installation of the windows and other work on the residence. Per Jibladze, there was no discussion of prices, only that Jibo would save Duddy as much as possible. Ryan Duddy’s markedly different version of the events was that, after a chance encounter with Jibladze, whom he knew slightly, they discussed Jibo’s doing work on the project and ultimately agreed that Jibo would install the Alaskan yellow cedar roof shingles, roofing under a widow’s walk, roofing under a second-floor deck, some flashing work and sidewall work including cottage corners for the fixed price of $55,000, which was to include all of the materials needed to do the work. Jibladze denied ever having made such an agreement with Duddy as the materials alone would cost almost $50,000. Things are apparently done differently on Nantucket. While it may be surprising that no written memorandum was made of the agreement between Jibo and Duddy, there was not even a contract between Duddy and the builder constructing his house. Nor were there subcontracts between Jibo and the various subcontractors that Jibo used. Nor were there invoices submitted by and between any of the parties involved in the construction of the residence while construction was ongoing. The net result of the conflicting testimony and the lack of writings is that it is impossible to prove that there was any “meeting of the minds.” In the absence of proof of a contract, the plaintiff should still be able to recover for the reasonable value of his services under the doctrine of quantum meruit. Liss v. Studeny, 450 Mass. 473, 479-82 (2008); Salamon v. Terra, 394 Mass. 857 (1985). b. Contract Performance Whatever the agreement of the parties was or was not, Jibo performed the work. The request to install the granulated ice and water shield over the entire roof area prior to installing the shingles was an unusual request that added labor costs to the project. Accordingly, Jibladze asked the subcontractor performing that work to keep track of the hours spent doing so and was informed that the work had required 118 hours of labor. At the time Jibo ceased work on the project, the ice and water Shield was fully complete. (Stipulated Fact No. 18). All of the other work items were completed during the summer of 2018 except for approximately two squares (200 square feet) of siding shingles that could not be installed until a door and trim that Duddy was waiting for was installed. (Duddy was actually charged for six squares by the contractor that completed that work (see Exhibit Q), which Duddy conceded was an overcharge as Duddy, himself, computed the un-shingled area at two squares during the trial). It was stipulated that Jibo furnished 299 bundles of Alaskan yellow cedar shingles at a cost to Jibo of $54.32 per bundle or $16,241.68. (Stipulated Facts No. 9). Of the 299 bundles that were furnished, 289 bundles were installed by Jibo on the Duddy residence roof. Assuming a 5-1/2” exposure of the Alaskan yellow cedar shingles, it was Jibladze’s testimony that it requires 6.8 bundles of Alaskan yellow cedar shingles to install one square (100 square feet). Dividing 289 bundles by 6.8 results in 42.50 squares, which corroborates Jibladze’s estimate of the 42.50 squares on the Duddy residence roof with an allowance for waste.' Carl Clarke, who testified that he did “some measurements,” thought the roof had an area of 32 to 34 squares but did not include an allowance for waste. Christopher Skehel, 1. The Shepley invoices for the Alaskan yellow cedar shingles notes that “7.0 Bundles Cover 100 SqFt @ 5-1/2” Exposure” (See Exhibits B through F). Using 7 bundles per square instead of 6.8 would reduce the estimated roof coverage from 42.50 to 41.29, a miniscule difference in this context. the defendant’s expert witness, testified that the roof had an area of 32 squares based on his physical measurement of 30% of the roof area, but also did not include waste in his calculations. Jibo also installed roof ridge caps on the Duddy residence roof. In any event, at the time Jibo ceased work on the project, the Alaskan yellow cedar shingle roofing was fully complete. (Stipulated Fact No. 19). At the time Jibo ceased work on the project, the bright copper flashing and lead flashing were fully complete. (Stipulated Fact No. 20). At the time Jibo ceased work on the project, the EPDM roofing membrane under the widow’s walk portion of the residence was fully complete. (Stipulated Fact No. 21). At the time Jibo ceased work on the project, the EPDM roofing membrane at the second-floor deck of the residence was fully complete. (Stipulated Fact No. 22). At the time Jibo ceased work on the project, the cottage corners were complete except for about 12 linear feet. (Stipulated Fact No. 23). ce. Contract Termination On August 2, 2018, at a meeting between Duddy and Jibladze, Duddy inquired as to what were the charges for the work performed by Jibo on the Duddy residence to that date. Jibladze informed Duddy that the charges were approximately $86,000 to that date. Duddy was very upset by that information and informed Jibladze that he would not pay that amount, insisting that the parties had agreed to a lump sum price of $55,000 for all of the labor and materials. According to Duddy’s testimony at trial, Jibladze denied that there was any such agreement at the August 2" meeting. After Duddy refused to make payment to Jibo on August 2, 2018, Jibo did not return to project. (Stipulated Fact No. 17). d. Jibo & Company, Inc. Invoice #221 Jibladze emailed Jibo & Company, Inc. Invoice #221 to Duddy on September 19, 2018. (Stipulated Fact No. 15 and Exhibit I). Duddy refused to pay Invoice #221 and has made no payment to date to Jibo against Invoice #221. (Stipulated Fact No. 16). The invoice is in the amount of $93,889.50. (Exhibit I). It is broken down into five general items, as follows: Install Ice & Water Shield to dry in the building. As noted above, Duddy requested Jibo to “dry in” the building and permit the installation of the windows and other work on the residence. As testified by Jibladze, Duddy suggested the use of tar paper; Jibladze recommended granulated ice and water shield based on the building’s exposure to the prevailing southwesterly winds. Jibo’s subcontractor installed 25 rolls of the ice and water shield which required 118 hours as tracked by the subcontractor. Jibo charged Duddy for the 118 hours at $55.00 per hour or $6,490.00 and for the 25 rolls at $92.00 per roll or $2,300.00 for a total of $8,790.00. Jibladze testified that the $55.00 per hour was a reasonable labor rate for Nantucket in 2018, that the material charge was at cost and that the total charge for the ice and water shield was fair and reasonable. Alaskan yellow cedar shingles. Jibo billed the labor to install 289 bundles of the Alaskan yellow cedar shingles at $85.00 per bundle or $24,565.00. (Jibladze testified that the notation “Labor: 289 install hours @ $85/bundle” was a typographical error and that it should have read “Labor: 289 bundles @ $85/bundle.” After Duddy refused to make any payment, Jibo charged the 299 bundles that it delivered at a retail price of $88.00 per bundle or $26,312.00. Jibo also charged Duddy $1,750.00 for the installation of ridge caps on the roof. The total amount charged by Jibo for the Alaskan yellow cedar shingles and ridge caps was $52,627.00. Flashing. Jibo charged Duddy $4,500.00 to install bright copper flashing which work was performed by Jibo’s subcontractor. Jibo supplied 15.50 sheets of bright copper flashing @ $155.00 per sheet or $2,402.50, which was the cost of that material in 2018, although it is presently much higher. The total amount charged by Jibo for the flashing was $6,902.50. Jibladze testified that the total charge for the flashing was fair and reasonable. EPDM Roofing. The EPDM or membrane roofing was installed by Jibo under the widow’s walk and under a second-floor deck. Jibo charged $2,500 for the widow’s walk and $2,000 for the second-floor deck. Jibladze testified that the total charge for the EPDM roofing was fair and reasonable. Sidewall. Jibo installed 34 squares of white cedar sidewall shingles. That required four bundles per square or 136 bundles. Of that amount, Clarke Brothers ordered 100 bundles at Jibladze’s request from Shepley for which Clarke Brothers (and ultimately Duddy) paid $83.11 per bundle, including sales tax. (See Exhibit M). Jibo supplied 9 squares or 36 bundles for which Jibo invoiced Duddy at $280.00 per square or $70.00 per bundle. (Exhibit I). Given that all the sidewall shingles were used, 136 bundles at four bundles per square results in an estimate of 34 squares which includes an allowance for waste. Carl Clarke testified that there were 28 to 29 squares of sidewall, based on his measurements, which did not include an allowance for waste. Christopher Skehel testified that there were 24.5 squares of sidewall based on his physical measurements of 98% of the sidewall area, although he apparently made no allowance for double courses, starter courses, cuts and waste. Jibo invoiced Duddy for labor to install the 34 squares at $450 per square or $15,300.00. (Exhibit I). Carl Clarke testified that he regularly pays about $350.00 per square to install sidewall shingles but never more than $375.00 per square. F&B Construction, who completed the sidewall shingling on the Duddy residence, charged Duddy for six squares of shingling labor at $285.00 per square, although they overcharged the shingling by 300% as there were only two squares left un-shingled while waiting for a door and trim to be installed.” Jibladze testified that the charges of $93,889.50 for the work listed on Invoice #221 were fair and reasonable charges for the work. Christopher Skehel testified that the fair market value for the labor and materials furnished by Jibo was $36,000. That did not include the flashing or the EPDM roofing as to which Skehel had not formed an opinion. Ryan Duddy, when asked how much he owed Jibo, answered “$44,000 or so”, presumably the difference between the $55,000.00 he says he agreed to pay, less the $11,466 in materials that Clarke Brothers ordered at Jibo’s request (see Exhibits J through 2. If F&B had not inflated the amount of sidewall area in its invoice (Exhibit Q), the unit price per square actually installed would have been $855.00 per square, almost double the unit price of $450.00 charged by Jibo in its invoice (Exhibit I). M) and the $1,950.00 that he paid to F&B Construction, although he acknowledged being overcharged four squares at $285.00 per square or $1,140.00 (see Exhibit Q). F&B’s invoice should have been in the amount of $810.00 (2 squares @ $285.00 per square and $240.00 for the cottage corners). Duddy would therefore owe Jibo $42,724.00 ($55,000.00 minus $11,466.00 minus $810.00), if the court accepts Duddy’s version of events. Jibo denies responsibility for the materials ordered at his request by Clarke Brothers as he testified that Clarke Brothers’ purchase of needed materials was part of the arrangement from the outset. Jibo also denies responsibility for the costs incurred to F&B Construction to complete the sidewall work and cottage corners as Jibo did not perform that work, nor did it charge Duddy for it. e uantum Meruit Measure of Damages In recognition of the possibility that the plaintiff's recovery in this action may be limited to a quantum meruit recovery, the plaintiff presented evidence of how such a recovery could be measured. In particular, the plaintiff presented evidence of how many hours it would require installing the Alaskan yellow cedar roof shingles and the siding shingles and what a reasonable labor rate would be for those hours. With respect to the roof shingles, of which 289 bundles were installed, the evidence was that it requires 6.8 bundles to install one square (100 square feet); that 289 bundles would therefore cover 42.50 squares; that it takes a carpenter seven hours to install a square; that 42.50 squares would therefore require 297.50 hours to install; and at a rate of $55.00 per hour, which Jibladze testified was the bare minimum rate for the work, the reasonable value of that labor would be $16,362.50. The foregoing is recapitulated in Exhibit V which constitutes a recalculation of Invoice #221 (Exhibit I). In Exhibit V, Duddy is given the benefit of Jibo’s discount purchase of the roof shingles at $54.32 per bundle. The calculation of the value of the ridge cap installation is unchanged. The total of the roof shingling is thereby decreased from $52,627.00 to $34,354.18. Jibladze testified that there would be no profit to him at that number. 3. Although the Defendants’ Proposed Rulings of Law cite various cases for the proposition that a quantum meruit recovery cannot include profit, it is submitted that the cases cited do not so With respect to the siding shingles, the testimony by Jibladze was similar. He installed 34 squares of siding shingles. It takes a carpenter seven hours to install one square; the 34 squares would therefore require 238 hours to install; and at a rate of $55.00 per hour, which Jibladze again testified was the bare minimum rate for the work, the reasonable value of that labor would be $13,090.00, a reduction from the $15,300.00 charged for shingling labor in Invoice #221. The cottage corners were charged at the same rate of $25.00 per linear foot times 130 linear feet or $3,250.00. (F&B Construction charged $20.00 per linear foot (Exhibit Q)). The 36 bundles of shingles furnished by Jibo were charged at the same rate of $70.00 per bundle (less than the $83.11 per bundle that Clarke Brothers paid for the same product). The total for the sidewall shingling on Exhibit V is $18,860.00. Jibladze testified that there would be no profit to him at that number. The three other items in Invoice #221 remain unchanged in Exhibit V. The ice and water shield materials were billed at Jibo’s cost of $92.00 per roll for 25 rolls. The labor charge was based on hours reported by the subcontractor that performed the work at the, again, reasonable rate of $55.00 per hour. The flashing number, the labor for which was performed by a subcontractor, remained unchanged at $6,902.50. The EPDM roofing at the widow’s walk and second-floor deck remain unchanged at $4,500.00. The total value of the labor and materials as shown on Exhibit V is $73,406.68. Again, Jibladze testified that there would be no profit to him in a recovery at that number. hold. The decision in Incase Inc. v. Timex Corp., 488 F.3d 46, 54 (1st Cir. 2007) held that a quantum meruit recovery could not be based solely on lost profits. Peabody N.E., Inc. v. Marshfield, 426 Mass. 436, 442 (1998) excluded the consideration of field overhead and home office overhead in a quantum meruit recovery. The case of Mass. Eye & Ear Infirmary v. OLT Phototherapeutics, Inc., 552 F.3d 47, 67 (1st Cir. 2009) dealt with intellectual property and royalties and is inapposite. Fraser & Wise, P.C. v. Primarily Primates, Inc., 966 F. Supp. 63, 78 (D. Mass. 1996) dealt with the value of attorney’s fees and is inapposite. Section 344 of the Restatement of Contracts (Second), which is captioned “Purposes of Remedies,” deals with damage calculations for breach of contract, not quantum meruit. If the measure of damages in quantum meruit is based on the reasonable value of the labor and services rendered, wouldn’t that value include a reasonable amount of profit that a reasonable contractor would charge? The issue is, perhaps, moot, as Jibladze testified that there would be no profit to him in a recovery based on Exhibit V. Certainly, there was conflicting testimony. Carl Clarke testified that he pays his carpenters between $20.00 and $40.00 per hour but conceded that those rates did not include mandatory employment taxes (FICA and Medicare at 7.65%) and workers’ ompensation insurance. Then again, Mr. Clarke testified that he never pays for shingling by the hour. Mr. Skehel testified that a carpenter should be able to install two squares of roof or siding shingles in eight hours. If one credits Mr. Skehel’s testimony that a carpenter can install two squares of shingles in eight hours (or one square every four hours), and if one credits Carl Clarke’s testimony that he pays $350.00 per square to install shingles, then Clarke Brothers must be paying its carpenters at the rate of $87.50 per hour ($350.00 divided by four), not $20.00 to $40.00 per hour. The credibility of the witnesses is for the court to determine, but it is submitted that the defendants’ witnesses’ testimony was inconsistent. f. Erica Duddy Erica Duddy testified that she has been married to Ryan Duddy at all times material to the action; that they purchased the real estate at One Monohansett Road with the intention of building a house on it; that she knew that Ryan engaged the services of Clarke Brothers Construction to build a house on the real estate; that she knew that Ryan made other arrangements for the construction of the house with her consent; and that she enjoyed the house and living in it. g. The Duddy Counterclaim Ryan Duddy has asserted a counterclaim for the cost of the materials ordered by Clarke Brothers Construction from Shepley Wood Products at the request of Jibo. The evidence was that the agreement of the parties was that Jibo would supply materials left over from prior projects from its inventory and everything else that needed to be purchased would be purchased at retail prices ordered on the account of Clarke Brothers Construction or on Duddy’s account. Jibo had no authority to order materials on the Clarke Brothers account at Shepley or at any other supplier and Jibo did not order the materials. Jibo should not be held liable for the cost of those materials. The counterclaim also seeks the recovery of the $1,950.00 charged by F&B Construction for shingling six squares of sidewall at $285.00 per square and 12 linear feet of cottage corners at $20.00 per linear foot. Aside from the fact that Duddy was charged for four squares of shingles that F&B did not install, Jibo never charged Duddy for the work actually done by F&B and should not be held liable to pay for it. IL. Rulings of Law Q) A contract is formed by an offer and acceptance, setting forth with certainty the material rights and obligations of the parties. In order to prove the existence of a contract with the defendant, the plaintiff must prove each of the following three elements by a preponderance of the evidence: that an offer was made; that the offer was accepted; and that the plaintiff and the defendant each gave up something of value, or promised to give up something of value. Cygan v. Megathlin, 326 Mass. 732, 733-34 (1951). There was ample evidence that an offer was made by Jibo, accepted by Duddy, that Jibo gave up something of value (the work) and that Duddy promised to pay for it. (2) An offer may be made orally or in writing, or even by a person’s conduct. What is important is that the offer be made in such a way as to justify another person in understanding that the acceptance of the bargain will bind both parties to the terms of the offer. Chicopee Concrete Service, Inc. v. Hart Engineering Co., 20 Mass.App.Ct. 315, 318 (1985). It should have been abundantly clear to Duddy that both parties were bound by obligations of their contractual relationship. Jibo was bound to perform the work, Duddy was bound to pay for it. G3) To recover for a breach of contract, the plaintiff must establish his material performance of all obligations under the contract or demonstrate that he is excused from performance. A material breach of the contract by one party excuses further performance by the nonbreaching party. Lease-I/t, Inc. v. Mass. Port Authority, 33 Mass.App.Ct. 391, 397 (1992). Jibo completed all but two squares of shingles that could not be completed until a door was installed by others and 12 linear feet of adjacent cottage corners which he failed to complete only after Duddy refused to make any payment. 10 (4) If the plaintiff has not proven a contract, the plaintiff may still be able to recover for the reasonable value of his services to the defendant under the legal doctrine of “quantum meruit.” This doctrine allows recovery under an implied contract to compensate for the reasonable value of services rendered. It is based on the concept that no one who benefits by the labor and materials of another should be unjustly enriched. Under those circumstances, the law implies a promise to pay a reasonable amount for the services and materials furnished, even if there is no specific contract. Liss v. Studeny, 450 Mass. 473, 479-82 (2008); Salamon v. Terra, 394 Mass. 857 (1985). In the absence of a finding that a contract was made between the parties, the doctrine of quantum meruit should clearly apply to the facts of the case. 6) In order to recover under the doctrine of quantum meruit, the plaintiff must prove the following by a preponderance of the evidence: a. that the plaintiff in fact rendered services or furnished materials to the defendant; b. that the plaintiff rendered services or furnished materials with the reasonable expectation of being paid by the defendant; and c. that the defendant, having reason to believe that the plaintiff was acting with the expectation of being paid, permitted plaintiff to act without objection. Therrian v. LeBlanc, 282 Mass. 328 (1933). That all of the above requirements were met was established by a preponderance of the evidence. (6) The plaintiffs damages in quantum meruit are the reasonable market value of services and materials rendered at the time they were rendered, less payments, if any, already made by the defendant to the plaintiff. Lease-It, Inc. v. Mass. Port Authority, 33 Mass.App.Ct. 391, 397 (1992). As no payments were made by Duddy to Jibo, the measure of Jibo’s damages is the reasonable market value of services and materials rendered at the time they were rendered. ) Quantum meruit damages must be proven with a reasonable degree of certainty. Any damages that the plaintiff claims to have suffered, including any compensatory damages, must be computed by rational methods upon a firm factual basis. In order to recover damages, the plaintiff must establish that his damages are ascertainable 11 by reference to some definite standard, either of market value, established experience, or direct inferences from known circumstances. However, a mathematical certainty in measuring damages is not a requirement for the plaintiff to receive an award of damages. Much of the determination of damages is left to sound discretion. Kobayashi y. Orion Ventures, Inc., 42 Mass.App.Ct. 492, 500 (1997); Fernandes v. Union Bookbinding Co., 400 Mass. 27, 37-38 (1987); Sackett v. St. Mary's Church Society, 18 Mass.App.Ct. 186 (1984); John Hetherington & Sons, Ltd. V. William Firth Co., 210 Mass 8, 21-22 (1911); Don v. Soo Hoo, 75 Mass.App.Ct. 80, 85 (2009). It is submitted that the evidence established with reasonable certainty the fair market value of the labor, material and services provided by Jibo, which is also in the sound discretion of the court to assess. (8) The question of what is fair and reasonable compensation for services rendered is a question of fact. An award need not be susceptible of calculation with mathematical exactness, provided there is a sufficient foundation for a rational conclusion. Where the court cannot estimate the value of the services from common knowledge, the plaintiff must present evidence of the reasonable value of the services. The amount of recovery on a claim based in quantum meruit is the fair and reasonable value of material and labor supplied to the benefiting party. Zncase Inc. v. Timex Corp., 488 F.3d 46, 54 (2007). (9) Inherent Agency Power. “The term ‘inherent agency power’ has been used by some courts, although not explicitly by the intermediate appellate court and supreme court in Massachusetts, but the concept underlying the term, i.e., fixing liability upon the principal for acts of an agent not actually or apparently authorized, has long been established in the law. The liability is ‘status-based’ rather than ‘authority-based,’ in that it depends on the relationship between the agent, the principal, and the acts at issue. It is a non-authority based vicarious liability resting on the policy that it is fair that a business enterprise should bear losses which are incurred when its general agent, although without authority to do so, does something which is usually done in connection with the transactions he is employed to conduct.” 14 Mass. Prac., §1.26 (5th ed.) It is submitted that the concept of “inherent agency power” should apply in this case. The evidence was that 12 Erica Duddy was a co-owner of the Property at all times material to the case, that she and Ryan Duddy purchased the real estate with the intention of building a house on it; that she knew that Ryan engaged the services of Clarke Brothers Construction to build a house on the real estate; that she knew that Ryan made other arrangements for the construction of the house with her consent; and that she enjoyed the house and living in it. Ryan had inherent agency power to bind her to the terms of the contract and to pay the fair value of the labor, material and services she received as a result of Ryan’s efforts on her behalf. Til. Conclusions Q) Based upon the totality of the evidence, the court may find that there was a contract between Ryan A. Duddy and Jibo & Company, Inc. The scope of the contract was fairly certain and the price was going to be a function of the cost of the work once it was determined. (2) In the absence of a “meeting of the minds,” the plaintiff may recover in quantum meruit for the reasonable value of the labor and materials that it furnished. Jibladze testified that the $93,889.50 that was charged on Invoice #221 was the fair and reasonable value of the labor and materials that Jibo furnished to the Duddys. G) In the alternative, the court may find that the reasonable value of the labor and materials that Jibo furnished to the Duddys is set forth with reasonable accuracy in Exhibit V in the amount of $73,406.68. (4) In the context of a finding based on quantum meruit, judgment should enter against Ryan A. Duddy and Erica D. Duddy jointly and severally. (5) If judgment is based on a contract between the parties, interest on the judgment should be calculated from the date of Invoice #221 (Exhibit I) which is September 18, 2018, as the invoice constitutes a “demand” under G.L. ch. 231, §6C. (6) If judgment is based on quantum meruit, interest on the judgment should be calculated from the date of the commencement of the action on January 17, 2019. 13 For the plaintiff, Jibo & Company, Inc., By its attorneys, Law Offices of Warren H. Brodie, P.C., By:s/Qarren H Bradie WARREN H. BRODIE BBO # 058000 2 Salt Hay Road Waquoit, MA 02536 (774) 763-2951 Email: wbrodie@whbrodielaw.com CERTIFICATE OF SERVICE hereby certify that a true copy of the above document was served upon all attorneys of record by mailing copies of same by electronic mail on June 2, 2021 to: Stephen P. Griffin, Esq. spg@griffinlaw.com 224 Clarendon Street, Suite 32 Boston, MA 02116 Wanen Hb Brodie WARREN H. BRODIE 14