## Facts

- John Bowen Co., Inc. was the general contractor for a Massachusetts public project to build a Chronic Disease Hospital and Nurses’ Home in Boston.
- Albre Marble and Tile Company, Inc. entered two written subcontracts with Bowen to furnish marble and tile labor and materials for the project.
- The Supreme Judicial Court previously declared Bowen’s general contract with the Commonwealth invalid due to defects in the public bidding process, halting the project.
- Albre alleged it performed preparatory work at Bowen’s request (including samples, shop drawings, and related submissions) and sought payment for its value.
- Albre sued on four counts: two for breach of the written subcontracts and two seeking quantum meruit for the value of work and labor furnished at Bowen’s request.
- Bowen asserted impossibility as to the contract counts, and as to quantum meruit relied on (i) the absence of an architect’s certificate and (ii) a clause conditioning payment to Albre on Bowen’s receipt of payment from the Commonwealth.
- Bowen moved for immediate judgment under G.L. c. 231, § 59 based on pleadings and affidavits; the Superior Court entered judgment for Bowen on all counts.

## Issues

1. Whether the judicial invalidation of the public general contract made performance of the subcontracts impossible, entitling Bowen to judgment on Albre’s contract counts.
2. Whether Albre’s quantum meruit counts presented triable issues notwithstanding contract provisions requiring an architect’s certificate and conditioning payment on Bowen’s receipt of payment from the Commonwealth.
3. Whether the pleadings and affidavits showed no genuine issue of material fact under G.L. c. 231, § 59 as to each set of counts.

## Decision

- The court overruled Albre’s exceptions as to Counts 1 and 2, leaving judgment for Bowen in place on the breach-of-contract claims.
- The court sustained Albre’s exceptions as to Counts 3 and 4, holding immediate judgment was improper on the quantum meruit claims.
- The case was remanded to the Superior Court for further proceedings on Counts 3 and 4; the appeal was dismissed.

## Legal Principles

- When a public construction contract is judicially declared invalid, dependent subcontracts may become impossible to perform, barring recovery of contract damages for breach where no genuine fact dispute exists on that defense.
- A subcontractor may seek restitution in quantum meruit for the fair value of work and labor performed at the contractor’s request, even if the underlying public contract is invalid.
- Contractual requirements such as an architect’s certificate and clauses tying subcontractor payment to the contractor’s receipt of owner payment do not automatically defeat a quantum meruit claim at the pleadings-and-affidavits stage where material factual issues remain.
- Under G.L. c. 231, § 59, immediate judgment is proper only when the pleadings and affidavits show no genuine issue of material fact and the moving party is entitled to judgment as a matter of law; otherwise, the matter must proceed to trial.

## Conclusion

The court held that invalidation of the public general contract excused the general contractor from liability for breach of the written subcontracts as a matter of impossibility, but it did not foreclose the subcontractor’s potential restitutionary recovery for preparatory work allegedly performed at the contractor’s request, making immediate judgment improper on the quantum meruit counts.


Albre Marble & Tile Co. v. John Bowen Co., 338 Mass. 394, 155 N.E.2d 437 (1959)