290 Mass. 398 | Mass. | 1935
In November, 1931, the original defendant Kennedy became the general contractor for the building of a road in Boston for the Commonwealth. The plaintiff Barry, a dealer furnishing crushed stone and stone dust to Kennedy for the job, brought this bill under G. L. (Ter. Ed.) c. 30, § 39, to obtain the benefit of security in the form of a bond upon which the defendant Maryland Casualty Company is surety and of money retained by the Commonwealth. Various subcontractors, and persons furnishing material to the contractor or a subcontractor, intervened for the purpose of sharing in the security.
The case was referred to a master under the form of reference set forth in Rule 86 of the Superior Court (1932). The claims of the plaintiff Barry and of many of the interveners are not now in controversy. The appeals of Kennedy’s trustee in bankruptcy and of Maryland Casualty Company present for our consideration the allowance of the claims of the interveners Bowen Contracting Company, Fisher Hill Company and Charles I. Hosmer, Inc., in addition to the disallowance of the claim of Kennedy to a larger award against the Commonwealth than was made.
1. The claim of Bowen Contracting Company. This company performed work in excavation as a subcontractor under Kennedy. The master found a balance due it of $2,532.21. The defendants seek to wipe out that balance by a charge in favor of Kennedy for the rehandling and spreading of excavated loam. Its contract required it to perform “Loam Excavation, including disposal” in “accord-
The claim of Bowen Contracting Company is attacked also on what are thought to be technical grounds. It is not now argued that its contract was invalid because executed before its articles of organization were filed. See Colpitts v. L. C. Fisher Co. 289 Mass. 232, 233, and cases cited. It is contended, however, that an assignment of its claim to Oliver G. Kelley on September 6, 1932, deprived Bowen Contracting Company of the right to preserve its claim by a statement signed and sworn to by its attorney on September 14, 1932, and then duly filed. As a corporation, it could act only by an agent or attorney. Whether the attorney had authority at the time is unimportant, for the subsequent intervening petition for the enforcement of the claim impliedly ratified his act. Batchelder v. Hutchinson, 161 Mass. 462, 467.
There is nothing in the objection that the statement was filed, and the petition brought, by and in the name of Bowen Contracting Company, the assignor. The statute (G. L. [Ter. Ed.] c. 30, § 39), in providing that “the claimant” shall file a statement and subsequently a peti
2. The claim of Fisher Hill Company, Inc. This company furnished to the intervener Bowen Contracting Company, and to the contractor Kennedy, gasoline which was consumed in the operation of machinery employed in doing the work of construction. In addition, it furnished to the contractor Kennedy other gasoline which was “used on this project,” being supplied to trucks. It cannot be assumed or found upon the master’s report that the trucks were not used in the work of construction. The claim was properly allowed. American Casting Co. v. Commonwealth, 274 Mass. 1.
3. The claim of Charles I. Hosmer, Inc. This claim is more complicated. Charles I. Hosmer and one Terrell M. Ragan were officers of Boston-Continental National Bank. On October 29, 1931, an agreement under seal was entered into between them and Kennedy, whereby “In consideration
On November 19, 1931, in partial performance of the agreement of October 29, 1931, Kennedy sublet to Charles I. Hosmer the bridge work called for by Kennedy’s contract with the Commonwealth. The price for the work to be done by Hosmer was the so called “ Coleman bid price,” and this required Kennedy to pay Hosmer about $17,000 more for the bridge work than Kennedy received for it. On April 27, 1932, without the knowledge of Kennedy, Hosmer assigned all his right, title and interest in and to his contract with Kennedy to a corporation formed and controlled by Hosmer, called Charles I. Hosmer, Inc., which agreed
The defendants argue that Hosmer and Ragan were partners or joint adventurers with Kennedy in his contract with the Commonwealth, and that neither Hosmer nor his assignee can claim rights as a subcontractor. The only evidence of partnership or joint enterprise is the contract of October 29, 1931. Evidently that contract contemplated no partnership or joint enterprise. Hosmer and Ragan merely exacted a promise to share profits as the price of their financial assistance. Rosenblum v. Springfield Produce Brokerage Co. 243 Mass. 111. Mitchell v. Gruener, 251 Mass. 113, 123. Beatty v. Ammidon, 260 Mass. 566. Seemann v. Eneix, 272 Mass. 189. Whatever may be said of the ethics or the legality of the contract of October 29, 1931, the subcontract of November 19, 1931, though contemplated by the earlier contract, stands by itself. Bauer v. Bond & Goodwin Inc. 285 Mass. 117, 119. The contract of October 29, 1931, was unilateral. Hosmer and Ragan promised nothing, but in consideration of their “being instrumental in obtaining financial backing” Kennedy promised several things. The master refuses to find any breach of that contract on the part of Hosmer. Even if Hosmer failed to obtain the financial backing contemplated, the result would be only that Kennedy would be excused from executory promises on his part. Failure after November 19, 1931, to furnish financial backing would not deprive Hosmer of his rights under the unconditional subcontract made on that day.
In view of the general finding in favor of Charles I. Hosmer, Inc., it cannot be assumed or found that the subcontract with Hosmer involved such a reliance upon his personal skill and care that it could not be assigned. New England Cabinet Works v. Morris, 226 Mass. 246,
4. The claim of Kennedy against the Commonwealth. In adjusting the rights of the parties, the amount owed to Kennedy by the Commonwealth was determined. In the computation, the master and the judge allowed him $77,491.44 for “borrow” at forty-five cents a cubic yard. By “borrow” is meant earth brought from outside the highway location and used for embankments. Kennedy’s trustee in bankruptcy contends that the cubic yards should have been counted by multiplying the number of truck loads by the capacity of the truck, and not measured by the cross-section method. The master found that the latter method was not only more accurate but was required by the contract. No error appears. This claimant appealed from the denial of his motion to recommit the master’s report for the finding of an additional fact which, his trustee in bankruptcy contends, would show a mathematical error in the number of cubic yards found by the master. Recommittal for such a purpose is discretionary with the judge. Pearson v. Mulloney, 289 Mass. 508, 513.
What has been said covers the objections.to the master’s report, as well as the matters argued with respect to the propriety of the final decree based upon it.
Interlocutory decrees affirmed.
Final decree affirmed, with costs to the Commonwealth and the interveners.