309 Mass. 380 | Mass. | 1941
The trial judge, in the District Court, denied certain requests of the defendants for rulings of law, ruled that the bond on which the action was brought was not a statutory bond under G. L. (Ter. Ed.) c. 149, § 29, and found for the plaintiff. The Appellate Division for the Northern District, however, found that there was prejudicial error, ordered that the finding for the plaintiff be set aside and a finding entered for the “defendant.” The plaintiff appealed.
The judge found that the defendant construction company entered into a written contract with the city of Med-ford, in this Commonwealth, for the construction of a school building, and, on the same date, gave bond to the city, as principal, in which the other defendant is surety. The bond recites the execution of the contract and that a copy is attached, “the terms of which are herein referred to and made a part of this instrument []bond] as if fully set forth herein.” A copy of the bond appears in the record, but there is no copy of the contract. The judge further found that the construction company engaged a subcontractor who ordered certain materials from the plaintiff, and his finding for-the latter is for the value of materials unpaid for that were installed “in” the school. The plaintiff did not file a sworn statement of its claim within sixty days after it ceased to furnish materials, “nor did it file a petition to enforce its claim in accordance with ” G. L. (Ter. Ed.)
G. L. (Ter. Ed.) c. 149, § 29, as inserted by St. 1938, c. 361, in force at the time the contract and bond were executed, requires, among other things, that officers or agents who contract in behalf of any city for the construction or repair of public buildings shall obtain sufficient security, by bond or otherwise, for payment by the contractor and subcontractors for labor performed or furnished and materials used or employed in such construction or repair, “including lumber so employed which is not incorporated in the construction or repair work and is not wholly or necessarily consumed or made so worthless as to lose its identity but only to the extent of its purchase price less its fair salvage value . . . .” It is not questioned by anyone that the contract called for the construction of a public building within the meaning of that term as used in the statute. In Friedman v. County of Hampden, 204 Mass. 494, a contract for the construction of a public work was involved. It contained a provision for the retention by the owner of sums payable under the contract sufficient completely to indemnify it against any lien or claim, for which, if established, the owner of said premises might become liable. At that time, St. 1904, c. 349, the predecessor of said § 29, was in force, and required, as now, that sufficient security “by bond or otherwise,” should be obtained for the payment by the contractor and subcontractor for labor and materials used in the construction. No reference appears to have been made to the statute in the contract in that case, and the security appears to have consisted of the right of the
If the bond in question is a statutory one, so called, it is obvious that the plaintiff cannot recover in this action, A. L. Smith Iron Works v. Maryland Casualty Co. 275 Mass. 74, 76; Knowlton v. Swampscott, 280 Mass. 69, 71, nor could it establish any claim under § 29 because of its failure to comply with that section as to filing a sworn statement of claim and filing its petition in court. T. Shea, Inc. v. Springfield, 252 Mass. 571, 574.
But the plaintiff contends that, although most of the provisions of the bond are similar to those contained in the statute, the language hereinbefore quoted from the statute relative to lumber not incorporated in the building is omitted, and, accordingly, that the bond did not conform to the statute. From what has been said, we think it follows that the parties must be held to have intended that the bond in question was given in compliance with the provisions of said § 29, although it is true that security may be provided “otherwise.” See Hub Steel & Iron Works, Inc. v. Dyer, 283 Mass. 463, 466.
It has been said, correctly as we think, that official and
It so happens that the materials supplied by the plaintiff were actually installed “in" the building so that if it had proceeded under said § 29, it would have been unnecessary for it to rely, in establishing its claim, upon the omitted language.
In Walsh Holyoke Steam Boiler Works, Inc. v. McCue, 289 Mass. 291, where the bond was given pursuant to G. L. (Ter. Ed.) c. 30, § 39, which contains language substantially the same as that in said § 29, it appeared that the bond in question did not follow the precise language of the statute, and while the point raised in the case at bar was not at issue in that case, it was said that the bond was to be interpreted as carrying out the intention of the .parties, and that it was given as a bond required by the statute (page 294).
At the argument, our attention was not called to any case as to the effect of an omission such as in the case at bar, but in Probate Court for Grand Isle v. Strong, 27 Vt. 202, it was said of a probate bond, at page 205: “It is said the bond is void, the conditions not being according to the
We are of opinion that the bond in question is good as one given under the statute, and that it was error for the trial judge fco rule that it was not a statutory bond and that it must be treated as a common law bond, and also in refusing to rule, in accordance with the defendants’ fourth request, that the plaintiff could not recover because of its failure to comply with said § 29 by filing a sworn statement of claim and'filing a petition to enforce its claim. In the circumstances, it is unnecessary to consider any other requests, since a ruling in accordance with the defendants’ fourth request would have disposed of the case.
Order of Appellate Division affirmed.-