321 Mass. 20 | Mass. | 1947
This is a bill in equity by one who had furnished materials to Quinn Brothers Electrical Co., hereinafter referred to as Quinn, a subcontractor, who contracted on October 24, 1938, with Rugo Construction Company,
The plaintiff, a wholesale and retail dealer in electrical supplies in Boston, had for some time prior to the time Quinn was awarded the subcontract in question frequently sold to Quinn electrical supplies from its own stock, which it delivered to Quinn on the sites of various jobs where Quinn was engaged. After Quinn had entered into the contract with Rugo, the plaintiff continued to deal with it in the same manner. The plaintiff furnished supplies to Quinn, some of which were used in the performance of its contract with Rugo and others in the performance of a contract which it had directly with the city of Malden. Under its contract with Rugo, Quinn was required to furnish certain electrical equipment which had to be specially fabricated for this particular job. A salesman for the Wheeler Reflector Company, hereinafter called Wheeler, agreed to manufacture these materials and sell them through a distributor or jobber to Quinn for $5,000. Quinn on November 28, 1938, gave to the plaintiff an order for these materials, and on the same day the plaintiff ordered these goods from Wheeler. From time to time these materials were delivered by Wheeler to the school premises in accordance with certain orders or releases given by the plaintiff to Wheeler. Thes.e materials were charged by Wheeler to the plaintiff f who in turn charged and billed them to Quinn after each shipment. Quinn
The principal question is whether the plaintiff has a right to reach the security for the sale of the goods manufactured by Wheeler. Upon the findings of the master we are satisfied that the seller was the plaintiff and not Wheeler. This lot of goods was the subject of a particular contract separate and distinct from that under which goods out of its own stock were currently sold by the plaintiff to Quinn. The plaintiff agreed to sell the lot for a lump sum, and Quinn agreed to accept and pay this sum for the lot. The plaintiff was supplying material under two different contracts: (1) a' definite quantity of a lot specially manufactured for the school job, and (2) such other stock pattern supplies as Quinn might desire to purchase for this job. Our statutes, G. L. (Ter. Ed.) c. 30, § 39, as appearing in St. 1935, c. 472, § 1, and G. L. (Ter! Ed.) c. 149, § 29, as appearing in St. 1938, c. 361, requiring security in favor of those furnishing labor and materials in the construction or repair of public structures and other public works, are an outgrowth of the mechanics’ lien statutes, Friedman v. County of Hampden, 204 Mass. 494; and as there can be no lien upon public buildings or other public works, Lessard v. Revere, 171 Mass. 294, the laborer or materialman, instead of having a lien
The plaintiff points out that the master has found that the plaintiff on March 13, 1940, filed a sworn statement of its claim within sixty days after it ceased to furnish materials, but this finding does not refer to the lot of goods manufactured by Wheeler because the master found “that the
The final contention of the defendants is that the plaintiff should be barred from any relief because it wilfully and knowingly filed a claim substantially in excess of what was owed to it by Quinn both on the running account and on the lot of goods specially manufactured by Wheeler. This would be an absolute defence to a bill brought to enforce a mechanic’s lien if proved, and we do not intimate that the same rule would not be applicable upon a bill to reach the security by one who furnished labor or supplied materials for a public building. See G. L. (Ter. Ed.) c. 254, § 11; Barry v. Duffin, 290 Mass. 398; Lampasona v. Capriotti, 296 Mass. 34. The master has found, however, upon unreported evidence, that the burden of proving this contention has not been sustained. We see nothing with respect to this finding, either in the report or in the exhibits, that demonstrates any error upon the part of the master.
The final decree is affirmed except as to the fourth paragraph and all the amounts mentioned in said paragraph, except the amount of costs, are struck out and there is to be substituted therefor a sum composed of $935.79 and interest from the date of the filing of the bill of complaint to the date of the filing of the master’s report, and this sum together with interest thereon is to be brought down to the date of the new final decree together with costs. The decree is to contain a provision ordering Quinn to pay the two amounts mentioned in the original decree with interest and with costs and that the payment of'said sum of $935.79 shall be a discharge to this extent of Quinn’s indebtedness.
So ordered.