287 Mass. 255 | Mass. | 1934
The plaintiff is a manufacturer of brick in Ohio. The Pennsylvania Tile and Brick Company is or was a dealer in brick and other building materials in Boston. John Bowen Co. is a building contractor in Boston. The plaintiff sold brick to the Pennsylvania Company, which in turn sold it to John Bowen Co., for use in a schoolhouse built by John Bowen Co. for the city of Boston, and the brick was used in the schoolhouse. The Pennsylvania Company owes the plaintiff $5,597.50 for that brick. A bond
The plaintiff has no claim to the benefit of the statutory security and consequently no claim against the fund in court. The security required by the statute cited is for payment for materials “by the contractor and sub-contractors.” It does not extend to payment for materials by one who is neither the contractor nor a subcontractor undertaking any work of construction or repair, but is merely a dealer who buys material for the purpose of selling it to the contractor or a subcontractor. Hightower v. Bailey, 108 Ky. 198, 207, 208. Hinckley v. Field’s Biscuit & Cracker Co. 91 Cal. 136. It is immaterial that the brick was made especially for the job; the plaintiff’s debtor was nevertheless only a materialman.
On June 8, 1932, the defendant Shaw, really acting as the agent of Madeline M. Ryan, one of the directors of the Pennsylvania Company, but ostensibly acting for himself, agreed in writing to lend that company $10,000 from time to time as needed, and as security took a written assignment of the money due and to become due to that company from John Bowen Co. under the contract for material for the schoolhouse. Under that agreement Ryan, through Shaw, advanced the Pennsylvania Company $5,000 on June 27, 1932, and $3,000 on September 28, 1932.
On December 31, 1932, a general assignment for the benefit of creditors was made by the Pennsylvania Company to the defendant Proctor. Since the claim against the fund, made by the plaintiff, has failed, the defendant Proctor is entitled to the fund in court, except so far as the defendant Shaw may have rights in it under his assignment.
The objection made to the validity of the assignment to Shaw is, that on June 8, 1932, when it was given, there
We need not consider whether the rather indefinite oral order or agreement of May 24, 1932, amounted to an enforceable contract between the Pennsylvania Company and John Bowen Co., from which neither could escape. Beach & Clarridge Co. v. American Steam Gauge & Valve Manuf. Co. 202 Mass. 177. Duggan v. Matthew Cummings Co. 277 Mass. 445. George W. Wilcox, Inc. v. Shell Eastern Petroleum Products, Inc. 283 Mass. 383. In this Commonwealth it has never been held necessary to the validity of an assignment of money to become due in the future, that there be a binding contract under which the assignor may insist that money shall become due. It is sufficient that there is an existing engagement out of which it is
The present case differs from Commercial Casualty Ins. Co. v. Murphy, 282 Mass. 100, 106, where there was no engagement or relationship until a formal written contract was made; from Eagan v. Luby, 133 Mass. 543, where it was held that a janitor elected annually could not assign his salary for a succeeding year; from Taylor v. Barton Child Co. 228 Mass. 126, where an assignment of accounts receivable which might result from unknown future transactions with persons generally, was held invalid; and from In re Estate of Nelson, 211 Iowa, 168; 72 Am. L. R. 850, which denied validity to an assignment of future accounts receivable from named customers. We are of opinion that the assignment to Shaw was good as against the later assignment for the benefit of creditors. No notice or record was necessary. Taylor v. Barton Child Co. 228 Mass. 126, 131. Commercial Casualty Ins. Co. v. Murphy, 282 Mass. 100, 104.
The final decree rightly gave the fund to the defendant Shaw so far as necessary to repay him, and the residue to the defendant Proctor as assignee for the benefit of creditors. Although the plaintiff failed to prove any claim against the fund, it was proper to establish its claim against the Pennsylvania Company. Peerless Unit Ventilation Co. Inc. v. D'Amove Construction Co. 283 Mass. 121, 125, 126.
Decree affirmed.