273 Mass. 139 | Mass. | 1930
In this suit the plaintiff and intervening petitioner have appealed from a decree dismissing the bill. The plaintiff first brought an action at law, in tort or contract, afterwards amended into a bill in equity, in which it seeks to hold the United States Fidelity and Guaranty Company, referred to as the surety company, liable upon a bond executed by it. By amendments the Roman Catholic Bishop of Springfield, a corporation sole, described as the owner, and Edward C. Viner, designated as the contractor, were joined as parties defendant, and the Keasbey & Mattison Company was allowed to intervene.
By a subsequent contract dated May 18, 1927, between the owner and contractor, the latter agreed to furnish all materials and labor and install in the new rectory a heating apparatus for a stated sum. This contract contained substantially the same provisions as the former one except that the amount of the bond was to be less. Acting in pursuance of this agreement the contractor, as principal, and the surety company, as surety, executed a bond running to the owner in the specified sum, with a condition in terms like those in the bond previously given. Under this agreement the plaintiff furnished to the contractor materials which were used in the installation of the heating apparatus in the rectory. The intervening petitioner also furnished the contractor materials which he used in carrying out his contract for the furnishing of the heating system in that building. Neither of these companies has been paid for the materials, and neither of them filed a claim for a lien upon the premises. The representatives of the plaintiffs knew that bonds were given by the contractor, but never saw the bonds or the contracts above referred to, and had no knowledge of their terms. The trial judge stated that he was unable to find that either company furnished the materials or refrained from claiming a mechanic’s lien for them in reliance upon the provisions of the bonds. The contractor was petitioned into bankruptcy after he had completed his contract for the school. There was no evidence outside of the bonds and contracts themselves upon the question whether the parties understood and intended that the bonds should enure to the benefit of persons supplying materials to the contractor for use in carrying out his contracts. The trial judge ruled that neither the Central Supply Company nor the Keasbey & Mattison Company is entitled to bring suit against the surety upon these bonds.
There is a conflict of authority on the question whether laborers and materialmen are entitled to enforce their
The general rule that a person who is not a party to a contract and from whom no consideration moves may not sue upon it is well established in this Commonwealth.
In Mellen v. Whipple, 1 Gray, 317, 322, an exception to the general rule is recognized, permitting a plaintiff to recover on a promise made to a third person for his benefit if he can show that the defendant ■ “ has in his hands money which, in equity and good conscience, belongs to the plaintiff, without showing a direct consideration moving from him, or a privity of contract between him and the defendant.” Bianconi v. Crowley, 256 Mass. 187, 189. In Putnam v. Field, 103 Mass. 556, 557, the court said: “Under such circumstances, the law implies a promise to the defendant to pay him the money which in equity and good conscience belongs to him, and he can maintain an action of contract for money had and received to his use, though there is no express promise to him and the consideration does not move directly from him. The law creates the privity, and implies the promise.” See Forbes v. Thorpe, 209 Mass. 570.
The case of Hunter v. Boston, 218 Mass. 535, 538, in holding that materialmen could not recover against the surety on a contract bond presents a close analogy to the case at bar. The plaintiff furnished materials in the construction of a bathhouse which a contractor had agreed to build for the city. The contractor, when adjudicated a
The facts in this case do not bring it within the terms of any exceptions recognized in this Commonwealth to the rule that only parties to a contract may sue upon it. The decisions of this court to which reference has been made would seem decisive of the case at bar even though the fulfillment of the obligations of the contracts and bonds would be a benefit to laborers and materialmen.
Decree affirmed with costs.