236 Mass. 319 | Mass. | 1920
The general rule at law is that interest is allowed upon the ground of contract either expressed or implied for its payment, or by way of damages where money is detained, or for breach in the performance of a contract where some duty has been violated. Dodge v. Perkins, 9 Pick. 368. Donahue v. Partridge, 160 Mass. 336. Whitcomb v. Whitcomb, 217 Mass. 558. While equity generally follows the law, interest occasionally is allowed in the exercise of a sound discretion. Williams v. American Bank, 4 Met. 317. Law v. East India Co. 4 Ves. Jr. 824. See Hollister v. Barclay, 11 N. H. 501. The plaintiff accordingly must show either that his contract with the city provided for interest, or the amount retained to pay the claims of lienors had been wrongfully withheld. Burr v. Commonwealth, 212 Mass. 534.
By the terms of the contract if at any time there shall be evidence of any lien or other claim for which if established the defendant “or the said premises might be liable, directly or indirectly, and which is chargeable to the contractor,” the right is given to the city to retain out of any payment then due or thereafter to become due a sum sufficient “to completely indemnify it against any such claim.” The defendant lawfully could hold the money represented by the checks, which, though drawn in the plaintiff’s favor, had not been delivered because of the pending bill in equity, brought under St. 1909, c. 514, § 23, to enforce payment of claims for materials furnished to, and of workmen employed on the building by a subcontractor who engaged to provide and to install the heating and ventilating plant. Tower v.
It is conceded in the record that during the period of litigation the defendant was credited with interest on the balance in its general account, which having included the money ultimately paid to the plaintiff, he contends that even if interest as such cannot be recovered he is entitled to his proportionate part of the increment. But the defendant was not required to keep the money coming to the plaintiff under the contract separately and the title to the deposit remained in the city which sustained no fiduciary relation whatever to the plaintiff. Vail v. Durant, 7 Allen, 408,410. Central National Bank v. Connecticut Mutual Life Ins. Co. 104 U. S. 54. It did not unconscionably or unlawfully appropriate or retain any money of the plaintiff. See Morse v. Lowell, 7 Met. 152; Cronan v. Cotting, 104 Mass. 245; Woodward v. Towne, 127 Mass. 41; Raphael v. Mullen, 171 Mass. 111; Furber v. Dane, 204 Mass. 412.
The rights of the plaintiff as between him and the city were those of a general creditor and for the reasons stated the exceptions must be overruled.
So ordered.
