176 Mass. 237 | Mass. | 1900
The principal question in this case is whether the equitable ownership of the money afterwards earned under the contract passed to the defendant by the assignment from his son Edward F. Staples, and by such recognition of the assignment and of his action under it as appears in the facts before us. The "contract was to erect a schoolhouse for the city of Somerville. The American Surety Company was a surety for Edward F. Staples upon a bond for the faithful performance of the contract, and the plaintiff gave a bond to the American Surety Company to indemnify it against loss from its undertaking as surety. Edward F. Staples began the work, but was unable to finish it. It was suggested to the plaintiff by the city solicitor of Somerville and others that he should assume charge of the work for his own protection, and thereupon, on April 10,1897, an assignment was made from his son to him of the contract, and of all moneys, benefits, and emoluments to be derived therefrom. Notice of the assignment was given to the city of Somerville on April 21, and the assignment was afterwards recorded in the office of the city clerk in Somerville, and in the office of the city clerk in Lowell where the plaintiff lived. By the terms of the contract it was not assignable without the written consent of the city. The city might have refused to recognize the assignment, or to have any dealings with the plaintiff under it. Pike v. Waltham, 168 Mass. 581. Although no consent to the assignment was ever given in writing by the representatives of the city, the plaintiff went on under it without objection from the city, and completed the contract at his own expense, and the building was accepted by the city. He has received payments from the city on account of his work to the amount of $10,500, which were made by checks payable to the order of himself and his son Edward F. Staples, and were receipted for by their joint receipts. The city-appeared in this suit and offered to pay the balance of $4,000 in its hands, to such party as is equitably entitled thereto, and asked that the parties be required to interplead, and that the court order and decree to whom the payments should be made.
Under these circumstances it is immaterial that the city did not consent in writing to the assignment. James v. Newton, 142 Mass. 366. Richardson v. White, 167 Mass. 58. Under the
None of the other claims against the fund can be allowed in this proceeding. The order of the defendant Harrington was not accepted by the city, but was held by the treasurer to be paid if money should come into his hands belonging to Edward F. Staples with which to pay it. The order was of no effect against the plaintiff’s' assignment under which he seeks to recover money earned by himself after the assignment.
The assignment was not fraudulent as against the-assignee in insolvency. There is no evidence that there was actual fraud, and the assignment was made more than six months prior to the commencement of proceedings in insolvency.
If it appeared, as it does not, that the creditors attaching by trustee process had acquired rights against this fund, their attachments were dissolved by the insolvency proceedings begun in less than four months after the earliest attachment was made.
Since the building was to be used as a schoolhouse, McCarthy’s claim for a mechanic’s lien cannot be maintained. Lessard v. Revere, 171 Mass. 294.
Exceptions overruled ; decree affirmed.
