208 Mass. 372 | Mass. | 1911
This case was before this court and is reported in 202 Mass. 326. One of the questions then before the court was whether the right to compel the surety on the bond which the Commonwealth had taken from the contractors pursuant to Pub. Sts. c. 16’ § 64, (now R. L. c. 6, § 77,) to make payment for the benefit of the plaintiff could be enforced in that suit, and it was held that it could be so enforced. Another of the questions was whether the plaintiff was entitled to a lien for the powder which it had sold to the contractors and which they had
In addition to the amount received from the Commonwealth the plaintiff was allowed a dividend from the estate of Shanahan, one of the contractors, of $1,452.97. The costs of collection were $363.24, and the plaintiff contended that it should be required to credit only the net proceeds. But the judges ruled otherwise and required the plaintiff to credit the whole amount of the dividend. No exception to this ruling and no appeal from the decree was taken by the plaintiff, and no question in regard to that matter is, therefore, now before us.
The money reserved by the Commonwealth from the contractors was due to them generally and not in respect to any particular claims or demands, and it was retained by the Commonwealth under an article in the contract which gave the Commonwealth or the metropolitan water and sewerage board the right to keep any moneys which otherwise at any time would be payable to the contractors, and to apply the same, or so much thereof as the Commonwealth or the board might deem necessary, generally to the payment of claims for labor and materials furnished by parties to the contractors in the prosecution of the
We do not see why the plaintiff as the prevailing party is not entitled to costs, nor dó we see any reason for changing the rule laid down when the case was here before as to the time from which interest should be calculated. The filing by the plaintiff of its claim with the board constituted a demand from which interest began to run.
jDecree affirmed.
Fessenden, Richardson and Wait, JJ. See 202 Mass. 326, 328; Pub. Sts. c. 195, § 3, now R. L. c. 201, § 2.