225 Mass. 292 | Mass. | 1916
The exceptions to the master’s report having been overruled and the report confirmed by the interlocutory decree entered with the consent of the parties, the rights of the plaintiffs and interveners were left for determination on the pleadings and the findings of the master. While there were seven claimants who either brought suit_ or were joined as interveners, the final decree dismissed the bills as to the bonding company, the contractor, and five of the claimants, and the case is before us only on the appeal of four of the defeated claimants, and the trustees in bankruptcy of the contractor, plaintiffs in a cross bill, asking that the amount due under the contract from the city be ascertained and payment to them decreed. Masters v. Wayne Automobile Co. 198 Mass. 25. We shall refer to the contesting claimants as the appellants.
The master reports that the appellants furnished materials, or labor and materials as subcontractors in the erection and completion of the building, and that the debts due therefor as set forth in their respective statements remain unpaid. But, to obtain the benefit of the bond given to the city by the bonding company as security for payment by the contractor of their several demands, each appellant was required to file with the officers who contract in behalf of the city, “a sworn statement of his claim within sixty days after the completion of the work.” St. 1904, c. 349, re-enacted in St. 1909, c. 514, § 23. The remedy being created by statute, a compliance with its provisions is requisite to. the establishment of an equitable lien on the security. Tower v. Miller, 211 Mass. 113, 114. The reason why the claim should be filed as the statute requires is for the protection of the city as pointed out in Tower v. Miller.
It is plain that if the office is vacated by resignation or failure of re-election, the former incumbent owes no further duty of supervision and of administration to the municipality in whose behalf the contract was made. While under § 23 the security taken, whether “by bond or otherwise,” can be marshalled for the benefit
The officers during the entire period shown by the record who were empowered under the ordinances to execute contracts authorized by the city council for the erection of a new high school building were the mayor and the chairman of the committee on city property. If the mayor and chairman who signed for the city had continued in office, a filing of the claim with each of them would have satisfied the statute. But upon their retirement the claims should have been filed with their successors. The filing of a claim with the city clerk, or the city treasurer, or the clerk of the committee not having been authorized, and the claims of the appellants never having been filed with the mayor and with the chairman of the committee on city property in office when the alleged right of participation accrued, these debts weie rightly disallowed.
We express no opinion on the question whether the filing would have been sufficient if it appeared that the chairman actually received the papers from the clerk of the committee before the limitation had expired.
The remaining questions are presented by the appeal of the trustees. The statements of the debt due to the New England Iron Company in proper form and within the time prescribed were delivered to the mayor and the chairman then in office by a deputy sheriff acting for the company, who is to be treated as its agent for this purpose, and not as an officer engaged in the service of civil process. The trustees urge that what was done did not constitute a filing within the statute.. But useless and vain formalities are not essential. The word “file” as there used is equivalent to the words “give notice to the officers” or “serve notice upon the officers” in the manner prescribed. It was unnecessary for the claimant’s agent handling the papers to the officers to see what indorsement if any was made thereon, or to
The claim of Jenkins Brothers should not have been allowed. The statement sent by registered letter to each of the officers who signed the contract and to the mayor then in office and to the clerk of the committee on city property, although duly received, was not filed with the proper officers in conformity with the statute. It therefore becomes unnecessary to consider the further question whether this claim was seasonably presented.
The master having found that the contractor and bankrupt failed in performance,, the city upon default was authorized under article five of the contract to complete the work and to deduct the cost from the contract price, and, even in the absence of this provision, it would have had the right of recoupment. Hunter v. Boston, 218 Mass. 535. Norcross Brothers Co. v. Vose, 199 Mass. 81, 94, 95. The bonding company at the request of the city having performed the work which the master finds “was necessary to complete the contract, and that the price paid therefor, namely, $2,732.28, was reasonable,” the city could rightly deduct the payment made to the company. Pelatowsky v. Black, 213 Mass. 428, 430, and cases cited. Bernz v. Marcus Sayre Co. 7 Dick. 275. And the sum remaining would constitute the fund which the claimants seek to charge in liquidation of their respective debts. Burr v. Massachusetts School for Feeble-Minded, 197 Mass. 357. E. I. Dupont DeNemours Powder Co. v. Culgin-Pace Contracting Co. 206 Mass. 585, 589, 590.
The decree is to be modified by the disallowance of the claim of Jenkins Brothers, and by correspondingly increasing the amount payable to the trustees, and as thus modified it is affirmed. New York Bank Note Co. v. Kidder Press Manuf. Co. 192 Mass. 391, 409.
Ordered accordingly.
