302 Mass. 508 | Mass. | 1939
This is a petition in equity to obtain the benefit of a surety company bond given as security under G. L. (Ter. Ed.) c. 149, § 29 (St. 1935, c. 472, § 2), to the respondent town by a contractor for the repair of a schoolhouse. The contractor owes the petitioner for labor furnished and materials used in installing a heating system in the schoolhouse. The statute cited provides that "to obtain the benefit of such security the claimant shall file in the office of the . . . town clerk a sworn statement of his claim” within a certain time. The only question is, whether such a statement was filed.
The evidence is not reported, and the master’s conclusions do not appear to be based exclusively upon subsidiary findings stated. The master found that the petitioner's attorney mailed a sufficient statement, postage prepaid,
If neither the town clerk nor his only assistant ever received the statement, it could not have been filed in his office, for filing requires the placing of the document filed in the official custody of the filing officer. Reed v. Acton, 120 Mass. 130. Gorski’s Case, 227 Mass. 456, 460. Greenfield v. Burnham, 250 Mass. 203, 210. Powers Regulator Co. v. Taylor, 225 Mass. 292, 298. Otis Elevator Co. v. Long, 238 Mass. 257, 267. McClintic-Marshall Co. v. New Bedford, 239 Mass. 216, 222. United States v. Lombardo, 241 U. S. 73, 76. In re Gubelman, 10 Fed. (2d) 926, 929. Berlin v. Commissioner of Internal Revenue, 59 Fed. (2d) 996; 997. Commercial Standard Ins. Co. v. Garrett, 70 Fed. (2d) 969, 975. Poynor v. Commissioner of Internal Revenue, 81 Fed. (2d) 521.
After an interlocutory decree confirming the master’s report, a final decree was entered, dismissing the petition as against the town and the surety company. The petitioner appealed from both decrees. It contends that on the facts found the conclusion was required that the statement was received by the town clerk.
The mailing of a letter properly addressed and postpaid (Schneider v. Boston Elevated Railway, 259 Mass. 564, 566) does not merely create a presumption (Del Vecchio v. Bowers, 296 U. S. 280; New York Life Ins. Co. v. Gamer, 303 U. S. 161; Tyrrell v. Prudential Ins. Co. 109 Vt. 6) but rather constitutes prima facie evidence (Cook v. Farm Service Stores, Inc. 301 Mass. 564) of delivery to the addressee in the ordinary course of mail. Huntley v. Whittier, 105 Mass.
Interlocutory decree affirmed.
Final decree affirmed with costs.