Congress Construction Co. v. Worcester Brewing Co.

182 Mass. 355 | Mass. | 1903

Morton, J.

This is an action of contract to recover a balance of $1,725.77 alleged to be due from the defendant on account of the construction of a brewery by the plaintiff on the defendant’s premises at Worcester. The case was heard by the judge without a jury, and the defendant asked the judge to rule that the plaintiff could not recover on either count in the declaration. The judge refused so to rule, and found for the plaintiff, and the ease is here on report. “If . . . the plaintiff is entitled to recover on any one of the four counts of the declaration, the verdict ... is to stand; otherwise such order is to be made as may be required by law.”

We think that the ruling and finding were right. For some reason which does not appear the contract for the construction of the brewery was made between the plaintiff and one Tait, and it was under seal. All the payments however were made by the defendant, and beyond the signing of the contract Tait does not appear to have had anything to do with it, or with the construction of the brewery, but all matters relating thereto were transacted between the plaintiff and defendant. If the plaintiff’s case stood on the contract, it is clear that the plaintiff would not be entitled to recover since the contract is under seal and the defendant is not a party to it. Saunders v. Saunders, 154 Mass. 337. Flynn v. Massachusetts Benefit Association, 152 Mass. 288. New England Dredging Co. v. Rockport Granite Co. 149 Mass. 381. Flynn v. North American Ins. Co. 115 Mass. 449. But we think that the defendant, is estopped by the bond, and the recitals contained in it and the circumstances under which it was given, to deny its liability for anything that shall be found due the plaintiff on account of the construction of the brewery. The plaintiff had filed a mechanic’s lien, and, as the bond recites, was “ about to file its petition to enforce said mechanic’s lien in the Superior Court.” The defendant, as the bond also recites, desired that the petition should not be filed, and the bond was given to dissolve the lien and prevent the filing of the petition to enforce it, and accomplished the result desired by the defendant. There are various other recitals in the bond setting forth that the plaintiff under a contract between it and Tait acting as agent for and on behalf of the defendant had erected buildings and furnished machinery therefor on land belonging to the defendant, and that many items of indebtedness claimed by the plaintiff were disputed by the defendant, and many items of offsets in the way of credits and claims for imperfect work and otherwise made by the defendant were disputed by the plaintiff. And the condition of the bond is that, “ if the said Worcester Brewing Company shall fully pay, satisfy and indemnify said Congress Construction Company for the amount which shall be found due from said Worcester Brewing Company to the said Congress Construction Company upon the adjustment and settlement of all claims which are made by either side against the other . . . then ” etc. The plain import of the bond is, and we think that it must have been so understood by both parties, that if anything is found due the plaintiff, either under the contract with Tait or otherwise, the defendant is liable for it and agrees to pay it. This was in accordance with the previous conduct of the parties. After having procured a dissolution of the lien by means of the bond, it would be manifestly unjust to permit the defendant to avoid liability on the ground that it was not a party to the contract with Tait, unless according to the true construction of the bond its liability is so limited. As we have already said we do not think that it is. The bond not only assumes, but expressly recites, that the defendant is the principal in regard to matters pertaining to the construction of the brewery, and as such binds it to pay what may be found due. The error, if there was one, in regard to the legal effect of the contract between the plaintiff and Tait, did not prevent the fact as to the actual relations between the defendant and Tait from being what the bond recites them to have been, or relieve the defendant from the obligations contained in the bond, or from the estoppel created by the dissolution of the lien by means of it.

The remaining question is whether the plaintiff can recover under either count of the declaration, and we think that it is clear that it can under the second if not also under the third. The cause of action set out in the second count is established by means of the estoppel which is matter of evidence and not of pleading.

Exceptions overruled.