202 Mass. 326 | Mass. | 1909
The first of these suits is brought against the firm of Shanahan, Casparis and Company, the Commonwealth of Massachusetts and the United States Fidelity and Guaranty Company, to recover for materials furnished to the above mentioned firm in the construction of parts of an aqueduct for the supply of the city of Boston and its suburbs with water, which parts of the aqueduct the firm agreed to build under contracts entered into with the metropolitan water and sewerage board, under the provisions of the St. 1901, c. 168. The Pub. Sts. c. 16, § 64, which were in force when these contracts were made, required the officers or agents contracting in behalf of the Commonwealth for the construction or repair of public buildings or other public works, upon which liens might attach for labor or materials as against private owners, to “obtain sufficient security, by bond or otherwise, for payment by the contractor and by all sub-contractors for all labor performed or furnished and for all materials used in such construction or repair.” Bonds were given to the Commonwealth by this firm, to secure the proper performance of these contracts and also payment for all labor performed or furnished and for all materials used in the carrying out of the contracts, which several bonds the United States Fidelity and Guaranty Company executed as a surety. The plaintiff furnished á large amount of gunpowder, which was used in the prosecution of the work, in excavating the rock by blasting for the trench, as required by the contracts. The greater part of this material so excavated was used in the construction of the aqueduct. The plaintiff seeks, by this suit, to obtain an enforcement of the liability of the surety on the bonds for the payment of the debt.
The reasoning on which the decision rests is equally applicable to the enforcement of the security furnished by a bond. By the terms of the statute, this security is for the benefit of those having claims for labor and materials. The statute implies the existence of a right, on the part of these persons, to an enforcement of the bond to obtain payment for their debts. No mode of enforcement is prescribed. The courts are left to take proper action upon the application of those seeking relief. A petition in equity, like that in Nash v. Commonwealth, ubi supra, in which orders and decrees can be made, protecting the rights of all parties, is a proper proceeding in a case like the present. In many cases of this kind there would be numerous persons entitled to share in the security, some of whom might not be known when the suit was brought, and a proceeding in equity would be the only adequate mode of adjusting the rights of the parties. Statutory rights of beneficiaries, under contracts to which they are not direct parties, have often been recognized and enforced by the courts. Harris v. First Parish in Dor
The next question is whether a claim for gunpowder, used in blasting to excavate the trench and to put the rock in condition for use in the construction of the aqueduct, comes within the provisions of the statute. The right to security is given, under the statute, only for labor and materials for which a lien might attach if the building or other public works belonged to private persons. Pub. Sts. c. 16, § 64. R. L. c. 6, § 77. Kennedy v. Commonwealth, 182 Mass. 480. It has been held, under the law relative to mechanics’ liens, that the statute did not cover materials “ that did not form a part of the completed structure.” Boston Furnace Co. v. Dimock, 158 Mass. 552. This is undoubtedly true in reference to such materials as were under consideration in these cases. But this court has never had occasion to consider a case like the present, where the material was used directly upon the work or the structure in process of construction, for the purpose of bringing it into proper form or condition, and was entirely consumed in the use. In such a case it may be said that, in a general sense, the material enters into the completed structure. In this broad sense it forms a part of it, as it loses its identity and ceases to exist as a separate substance, in producing a direct effect upon the- construction, which effect remains as a part of the result shown in the completed structure. In Rapauno Chemical Co. v. Greenfield & Northern Railroad, 59 Mo. App. 6, the court used this language: “ Hence we think that the argument is unsound, that the lien in the case here must fail because the powder was entirely consumed, and, therefore, could not have been actually incorporated in the
In an opinion of the Court of Appeals in New York we find these statements: “ The argument that dynamite is not a material, but a part of the contractor’s plant which, like picks and shovels or mechanical appliances, are used in the performance of work, but are not considered materials furnished, within the purview of the statutes, seems to us inherently unsound. A steam shovel, an engine and boiler, picks, shovels, crowbars and the like, are tools and appliances which, while
This view of the law is held almost, if not quite, universally. While some of the decisions are under statutes a little broader than ours, we think the general principle upon which they depend is equally applicable to the Pub. Sts. c. 191, § 1. We are of opinion that the plaintiff is entitled to have the liability of the surety enforced for the payment of its debt.
The second case is brought against the firm of T. H. Gill and Company, their trustee in bankruptcy, the Commonwealth of Massachusetts, the United States Fidelity and Guaranty Company, and numerous other defendants who furnished materials to this firm for the construction of a sewer which the firm undertook to build for the Commonwealth, under a contract in writing executed in behalf of the Commonwealth by the metropolitan water and sewerage board. A bond was given to the Commonwealth with similar provisions, and with the same surety as in the other case. Some of the questions that arise are the same in both cases.
What we have already said shows that this kind of remedy is open to those who furnish labor or materials, such as are referred to in the statute. The demurrer of the surety on the bond was rightly overruled.
The greater part of the plaintiff’s claim was for spruce piles, furnished and put in position as a part of the completed struc
The plaintiff and several of the defendants furnished plank for sheathing for the trench of the sewer, which was left in position for the protection and support of the sewer, in accordance with the terms of the contract. While an important part of the purpose of it was to support the walls of the trench and protect the workmen, it also had another use, in reference to which it was retained in position permanently. The master found that this was a part of the permanent structure of the sewer, and he allowed the price of it properly under the statute.
In order to have the benefit of the R. L. c. 6, § 77, a claimant is obliged to file, with the officers or agents of the Commonwealth, “ a sworn statement of his claim, within sixty days after the completion of the work.” The only work previously referred to is the “ construction or repair of public buildings or other public works.” It is contended by the surety that this section requires the filing of each claim for labor or materials within sixty days after the last of such labor or materials is furnished by the claimant. There is no reference in the section to the time of ceasing to furnish materials, as a point from which the sixty days are to be reckoned for any claimant. The point of departure from which to ascertain the period of sixty days is “the completion of the work.” We think this means the completion of the public work, for the construction of which the contract was made. Otherwise, the rights of claimants for the price of materials, if they had done no work, would be left indefinite. The language is very different from that of R. L. c. 197, § 6, which requires the claimant to file his statement “ within thirty days after he ceased to labor on or to furnish labor or materials for the building or structure.”
The defendant, the Locke Coal Company, appealed from the disallowance of its claim for coal, burned in engines which were used on the work to furnish power for different purposes. We
Some of the defendants having claims accepted notes, payable upon short terms of time, to enable them to raise money for necessary uses, each of which notes the master has found was not accepted as a payment, but taken for a temporary purpose. The surety contends that it was discharged from its liability for these claims by the giving of time to the debtors. There was no evidence of any loss occasioned to the surety by these arrangements, and the question is whether, apart from loss or detriment, the surety was thereby released from liability for payment of these debts. It is to be noticed that the bond is not to pay a stated debt to a particular person at a fixed time. It is to perform the contract, and pay for all materials used in carrying out the contract. This relates to making payments within a reasonable time and in a reasonable way. It does not take from the claimant his right to make reasonable arrangements with the contractor for his payments, even to a reasonable extension of time for a part of his debt, if thereby the surety is not prejudiced. These claims are in favor of persons and for amounts unknown at the time of the signing of the bond. They are unlike a specified payment
The rulings as to interest were also right. The several claimants were entitled to interest as against the contractor, the principal in the bond, from the time when the debts to them severally became due. The liability of the surety was to' make good any default of the principal in regard to payments, within the amount stated as the penal sum of the bond. Warner v. Thurlo, 15 Mass. 154. Bassett v. Fidelity & Deposit Co. 184 Mass. 210. This statutory liability became fixed on each claim, as against the surety, at the time of filing the statements of the respective claims. Interest on the amount stated in the bond could rightly be charged, as it was charged, from the date of the filing of the bill. As there was a default before that date, the defendant is liable to pay interest on this amount from the commencement of the suit. Bank of Brighton v. Smith, 12 Allen, 243.
Decree in the first case reversed ; decree in the second case affirmed.