206 Mass. 585 | Mass. | 1910
The master, to whose report no exceptions were taken, finds that the Culgin-Pace Contracting Company, having made a written contract with the city of Springfield to build a dam, reservoir and intake tunnel, which upon completion were to become a part of the city’s water supply, bought of the plaintiff and used in the contraction of the works the powder and fuses charged in the account annexed to the bill. Before it was finished, but at what stage of completion is not stated, the contractor, apparently having become insolvent, abandoned the work leaving the plaintiff’s claim unpaid. The plaintiff, however, within sixty days of the abandonment having filed with the proper officers of the city a sworn statement of its claim for materials furnished, as required by St. 1904, c. 349, can maintain the bill for equitable relief if the bond given to the city by the contractor, and on which the Title Guaranty and Surety Company, the remaining defendant, is the surety, comes within the provisions of the statute. Friedman v. County of Hampden, 204 Mass. 494, 506,507. Kennedy v. Commonwealth, 182 Mass. 480. It is contended by this defendant that the condition of the bond cannot be so construed.
By the terms of the contract the contractors agreed “ to furnish sufficient security by bond or otherwise for payment by the contractors and sub-contractors for labor performed, or furnished, and for materials used in said construction in accordance, with the provisions of the Acts of 1904, chapter 349.” It is to be presumed that the attorney of the surety company who executed the bond in its behalf knew not only of the statute, but that this clause from the very terms employed was intended to be a strict compliance with it. Adams v. County of Essex, 205 Mass. 189, 197.
Indeed, the master states that this was the purpose of the
The bill, while framed to reach and apply so much of the security as may be necessary to satisfy the plaintiff’s demands, also asks that the city may be ordered to pay the amount from a sum of money in its possession accruing under the contract, which the master reports is claimed by several litigants “in suits, claims and demands arising by reason of alleged liens and otherwise.” The R. L. c. 25, § 57, makes the municipality liable only to a suit for labor performed upon public works. The plaintiff, whose debt is solely for materials, consequently has no cause of action against the city, and, if relief is granted on the first ground, is indifferent as to the second, and, the city also not having contested before the master or before us the plaintiff’s right to have its claim satisfied under the bond, the master’s further finding, that if the amounts involved in the other actions or claims are included, the aggregate exceeds the sum in the possession of the city, is immaterial.
The award of the master, while satisfactory to the plaintiff, is not wholly so to the surety company. It contends that the price of the fuses used to explode the dynamite was erroneously allowed. Yet the sticks of dynamite could not be exploded without the use of the fuses, and in the process both were entirely destroyed. If as defined in the case of George H. Sampson Co. v. Commonwealth, 202 Mass. 326, 333, 334, 335, gunpowder so used is “ a material ” within the meaning of our statute for which a mechanic’s lien may be claimed, dynamite, and the fuse used to fire it, come within the definition.
The result is, that the plaintiff is entitled to a decree against the defendant the Title Guaranty and Surety Company for the amount found by the master, with interest and costs, the details of which are to be settled in the Superior Court.
Ordered accordingly.