197 Mass. 357 | Mass. | 1908
The plaintiff is the trustee in bankruptcy of the H. P. Cummings Company, a corporation, and he brings this action against the Massachusetts School for the Feeble-Minded, to recover a balance due upon a contract for the construction of the “Boys’ and Girls’ Home at Waverly.” This contract was made under the authority of the St. 1905, c. 444, the money paid for the building was furnished to the Massachusetts School for the Feeble-Minded by the Commonwealth, and the balance alleged to be due on the contract has been paid into court under an answer by way of interpleader, setting up an equitable defence in favor of certain claimants. This balance, which amounts to $6,408.94, is twenty per cent of the value of the labor and materials furnished under the contract, which was retained under Article IX. of the contract. The question is whether certain parties who were employed by the H. P. Cummings Company to furnish labor and materials for the construction of the building, and who have not been paid, and who appeared in court as claimants, are entitled in equity to be paid out of this fund.
The R. L. c. 6, § 77, is as follows: “ Officers or agents who contract ixi behalf of the Commonwealth for the construction or repair of public buildings or other-public works shall obtain
The first question is whether the Massachusetts School for the Feeble-Minded was an officer or agent that contracted in behalf of the Commonwealth. The judge before whom the ease was tried found and ruled that it was, and we think it plain that this decision was correct. The buildings were erected on land of the Commonwealth, and the money to be paid for them was furnished by the Commonwealth. The relations of this institution to the Commonwealth are shown in part by the R. L. c. 87, §§ 113 to 123. The salaries and wages of all the officers and employees, and all bills for supplies and other expenses of the institution were paid from the treasury of the Commonwealth. R. L. c. 87, § 127. Acts and resolves relating to the subject, passéd almost every year for many years, are referred to in the agreed statement of facts. This is a corporation through which the Commonwealth carries on charitable work, and in reference to these buildings it was an agent contracting in behalf of the Commonwealth.
It was its duty, under the statute, in making the contract, to obtain security for the payment of these claimants. The statute was enacted to give contractors, furnishing labor and materials
The parties must be presumed to have known of this statute when they made the contract before us. They inserted in the contract this provision, which plainly refers to the general subject of securing contractors for debts due for labor or materials. Presumably they had a purpose in it, and it must be given meaning if possible. If it is construed strictly and narrowly, in accordance with the plaintiff’s contention, it has no possible application to the subject of the contract. Against the Commonwealth as an owner there can be no lien or claim for labor or materials for which the Commonwealth might be liable, and which is chargeable to the contractor, because there is no statute giving a lien against the property of the Commonwealth. The distinction arises because the Commonwealth is not an ordinary party, is not suable in the ordinary way, and does not acquire property for ordinary uses. To give this clause any effect the word “ owner ” must be held to have been used in the sense of an ordinary owner, or an owner apart from peculiar qualities as a sovereign State, affecting the liability to suits:and the creation of liens. If the clause were read, “ a lien or claim for which, if established, an ordinary owner of said premises might become liable,” etc., it would be free from ambiguity. If we read it in this way, we give effect both to the statute and the provision of the contract. If we give it the other meaning, the statute is set at defiance, and the provision is inapplicable to the subject with which the parties were dealing. We think it should be so construed as to give it effect.
In Nash v. Commonwealth, 174 Mass. 335, and Kennedy v. Commonwealth, 182 Mass. 480, this statute was considered, and
So ordered.