283 Mass. 121 | Mass. | 1933
This is a suit in equity to get the benefit of security for the payment by one Browne, a subcontractor, of $2,240 for labor and materials furnished by the plaintiff in the construction of a schoolhouse for the town of Water-town. The security was obtained under G. L. (Ter. Ed.) c. 149, § 29, and was in the form of a bond, running to the town, with the defendant D’Amore Construction Co., the general contractor, as principal, and the defendant The Aetna Casualty and Surety Company as surety. Furthermore, the defendant D’Amore Construction Co. owes Browne $1,050, and holds that sum subject to the.direction of the court upon an order given by Browne for the payment of that sum to the plaintiff; and the bill also seeks to obtain that sum. The order was subject to the conditions that payment to the plaintiff was not to be made unless a representative of Browne should be present nor until all disputes should be settled, and consequently the defendant D’Amore
The Superior Court, after the confirmation of a master’s report, ordered a final decree estabhshing the claim of the plaintiff against Browne for $2,240; directing the defendant D’Amore Construction Co. to pay thereon the sum of $1,050 with interest from the filing of the bill on January 15, 1931, and the defendant The Aetna Casualty and Surety Company to pay thereon the balance of $1,190 .with similar interest (said'balance to be paid by said defendant to the town, and by the town to the plaintiff); and awarding costs to the plaintiff against the defendant D’Amore Construction Co. The case was then reported to this court.
Only the defendant D’Amore Construction Co. defends the case in this court. Its defence is that the plaintiff did not file in the office of the town clerk a sworn statement of its claim within sixty days after it ceased to furnish labor or materials, as required by G. L. (Ter. Ed.) c. 149, § 29. The contract between the plaintiff and Browne was in writing. It provided for a sale of ventilating equipment to Browne, and excluded “erection, installation, personal supervision or inspection,” except that the plaintiff offered to inspect for an additional charge, and the master found that inspection included the adjustment of the equipment to temperature degrees. The sworn statement was filed on December 20, 1930. The master, whose findings cannot be revised in the absence of the evidence, found as follows: “the actual work of construction and installation of ventilating units was completed by September 3,1930, and adjustment of mechanical parts made immediately by the plaintiff on request of Browne. No further work of ‘adjusting’ was done thereafter except as later stated. ... I find that about November 29, 1930, a door of a ventilating unit got broken, or was not properly installed, without fault of the plaintiff. That ultimately, after notice first to those more
The statute requiring security for payment for labor and materials furnished for public works is an outgrowth of the statute creating mechanics’ liens upon buildings and land of private persons (Friedman v. County of Hampden, 204 Mass. 494), and the provision in the statute under which the present case arises, for filing a sworn statement of claim within a certain number of days “after the claimant ceases to perform labor or furnish labor or materials” follows almost exactly the provision of the mechanics’ lien law prior to the important changes made by St. 1915, c. 292. See R. L. c. 197, § 6. Decisions under that law are therefore in point. Work actually called for by the contract or continuing employment, performed in good faith with the intention of completing the job, though done with the ulterior purpose of saving the lien and postponed until long after the bulk of the work has been completed, will permit the filing of the statement within sixty days after the doing of the last work. Monaghan v. Putney, 161 Mass. 338. Burrell v. Way, 176 Mass. 164. Thurston v. Blunt, 216 Mass. 264, 268. Dolben v. Duncan Construction Co. 276
The work done on January 6, 1931, is immaterial. Even if the adjusting done on that day could be referred to the original contract, no sworn statement was filed after that work was done. The last work which sets the sixty days running must be a part of the work included in the plaintiff’s claim. The sworn statement must follow, and may not precede, the cessation of such work. General Fire Extinguisher Co. v. Chaplin, 183 Mass. 375. The case of Bay State Dredging & Contracting Co. v. W. H. Ellis & Son Co. 235 Mass. 263, 267, 268, arose while a claimant as to public works of the Commonwealth was required by law to file his sworn statement of claim “within sixty days after the completion of the work” (meaning the entire project, and not the job of the claimant), and the decision that a claimant might file his sworn statement before the entire project was completed had no tendency to authorize the filing of a sworn statement before the work included in the claim is completed. See G. L. c. 30, § 39; St. 1929, c. 111.
It follows that the plaintiff has no right to obtain the security of the bond, and that the bill must be dismissed as to the defendants The Aetna Casualty and Surety Company and the town of Watertown. Since the suit was begun and prosecuted in good faith, in the attempt to enforce a supposed equitable claim, it may be retained to do complete
Ordered accordingly.