292 Mass. 438 | Mass. | 1935
Several suits in equity were brought under G. L. (Ter. Ed.) c. 149, § 29, by plaintiffs and interveners
The appellant in its brief states, and we assume the statement is accurate, that “The claims of the original petitioners and of all intervening petitioners as established by the final decree herein appealed from, with the sole exception of the claim of Israel Nagel, have been settled, those appearing in paragraph 2 of said decree, since the trial of this action, through the payment by defendant Standard Surety & Casualty Company of New York.” This concession of the appellant leaves open only the claim of said Nagel and the claim of the defendant surety against the defendant city, the surety alleging to have been damaged through the failure of the city to retain fifteen per cent of the final contract price, after due allowance had been made for all proper extras and deductions, “$114,865 . . . or $17,229.75, as well as the sum of $7,045.81 retained by the said city under an optional clause in said contract authorizing but not requiring it to retain out of funds otherwise due said contractor sums sufficient to discharge any liens or other unpaid claims for labor and materials of which it should have knowledge, at the time such payments were otherwise due ... as required by the terms of said contract between said city and said contractor.” The appellant further con
An interlocutory decree in the Superior Court confirmed the master’s reports and a final decree dismissed the surety’s claim against the city. The said surety appealed from the rulings of law made by the judge, from all interlocutory decrees entered thereunder, and from the final decree.
On the principal issue of the overpayment or premature payment of $10,200, from the contract itself (incorporated in the record as an exhibit) and the master’s reports the following facts appear: By an instrument dated June 2, 1931, Alcide J. Gendron contracted to build the “shell” of a school house which was to be known as the Heard Street School. Under article I of said contract there is the provision: “All of the work to be performed under this contract is set forth on List #1 hereto attached, which drawings and specifications and bulletins are made a part of this contract and identified by the signatures of the parties hereto.” After certain provisions relative to the manner in which the work was to be carried on, article XV is as follows: “It is hereby mutually agreed between the parties hereto that the sum to be paid by the City to the Contractor for said work and materials shall be $68,000.00 . . . subject to additions and deductions as hereinbefore provided, and that such sum shall be paid in current funds by the City to the Contractor in installments, as follows: The cost of labor and materials incorporated into the building during each month shall be paid on the twentieth day of the succeeding month, except fifteen per cent, thereof shall be retained each month by the City until the
At the end of the contract, before the signatures thereto, the following paragraph appears: “It is further mutually agreed that if the City of Worcester appropriates sufficient money therefor on or before December 31, 1931, that the Contractor will complete said Heard Street School by furnishing all the labor and material necessary to do all the work enumerated on List #2, attached hereto and made a part hereof, for the additional price of $44,865.00. All the additional work contemplated by this paragraph shall be performed in full compliance with the plans, specifications and bulletins referred to above and all the terms of the main contract.” Next follows detailed “Estimate of materials and labor to complete Heard St. School as per proposal #2.” By letter dated February 4, 1932, the superintendent of
The main contract contains a provision as to the bond given by the surety company, which reads: “Witnesseth that the Contractor, in consideration of the payments hereinafter mentioned, and of the fulfillment of the agreements herein mutually entered into, the performance of his agreement being secured by a bond in the sum of . . . [$112,865], bearing date the 2nd day of June 1931, and hereunto annexed, agrees with the said City as follows . . . .” The bond itself recites: “The condition of this obligation is such that whereas the said Principal has entered into the contract with the City of Worcester bearing date the 2nd day of June 1931, to which this bond is annexed. Now Therefore, if the said Alcide J. Gendron shall well and faithfully perform all the terms and conditions of the said written contract on his part to be kept and performed as therein stipulated, and shall pay for all labor performed or furnished and for all materials used in the fulfillment of said contract, then this bond shall be void, otherwise it shall remain in full force and effect.”
The work done under list #1 having been completed on April 1, 1932, the city of Worcester on July 20, 1932, paid the contractor $10,200, that amount being the fifteen per
As above stated,- the surety company in its brief presents to this court only the issue as to the premature payment by said city, and the question whether one of the plaintiffs, Nagel, filed a proper notice of claim. On the first issue the said surety company contends that the work to be done under list #1 and list #2 was a part of a single and indivisible contract and that the fifteen per cent of the price for the work under list #1 should have been retained until the completion of all the work under both lists. In determining whether a particular transaction results in one entire contract or in several separate contracts the “intention of the parties [is] to be ascertained from the whole instrument, viewed in connection with the conditions when the contract was made” and this intention must control. Cumberland Glass Manuf. Co. v. Wheaton, 208 Mass. 425, 434.
Even if it be admitted that the agreements as to the work under the two lists constituted one entire contract, it would not follow that the said surety was damaged by said overpayment, or premature payment, through the failure of the city to retain the sum of $10,200 so that the same might be available for the surety’s indemnification and might be applied by it in diminishment of its losses. A contract may be entire in the sense that there is but one agreement covering all the terms and yet it may be that the performance under the contract will be divided into different groups, each set embracing performances which are the agreed exchange for each other, the result being that the contract is entire but divisible. Badger v. Titcomb, 15 Pick. 409, 414.
Since payment for performance under list #1 was separate from that under list #2, it follows that the former payment would in ordinary circumstances become due upon completion of the part of the work done under list #1. Upon this theory, the clause relative to the retention of payments, referring to a complete unit of performance, is reasonably to be interpreted to require the city to withhold money for that performance only until it was completed, and not until a subsequent and separate performance was completed. Under this theory the payment of the money on the completion of the work done under list #1 could not be held to be an advance payment, an overpayment or a premature payment. Indeed it makes little difference as to which theory be adopted, as the intention of the parties is plain that the money withheld by the city under list #1 was to be retained only until the completion of the work under list #1.
Respecting the claim of Israel Nagel, the surety company contends that there can be no recovery since he failed, as it alleges, to file a proper notice of claim as required by the statute. Nagel performed work both on the school house and on the sewer building. In filing his claim for money due for labor performed and materials furnished on the buildings Nagel set forth both claims in one written notification. Despite the fact that the amount due under each contract and the work done thereunder were accurately set forth, the surety company contends that there was no valid claim filed as to labor and material furnished under the contract. With reference to the statute requiring a sworn notice of the claim to be filed, it has been said that the statute does not require useless and vain formalities and that the word “file” as there used is equivalent to the words “give notice to the officers.” Powers Regulator Co. v. Taylor, 225 Mass. 292, 298. We think that the notice
Interlocutory decrees affirmed.
Final decree affirmed with costs.