3 Mass. App. Ct. 753 | Mass. App. Ct. | 1975
We are not persuaded by any of the arguments advanced in the plaintiff’s brief (see Town Bank & Trust Co. v. Silverman, ante, 28, 32 [1975]) that the defendant’s demurrer to the declaration was improperly sustained — whether the allegations therein be tested by the law in effect on February. 26, 1974, when the demurrer was acted upon (see Mass.R.Civ.P. 1A, subpar. 7, 365 Mass. 732 [1974]; Harrison v. Textron, Inc. 367 Mass. 540, 557-558 [1975]) or by the law in effect when the appeal was heard by this court (see Charbonnier v. Amico, 367 Mass. 146, 147, fn. 3, and 152-153 [1975]). Count 1, based on a supposed breach of contract, fails to state or even intimate that “the provisions of the bond [to be required of the general contractor] ... show[ed] an intention to benefit subcontractors ... and to give them a direct right upon the bond....” Morse Bros. Elec. Co. Inc. v. Martin Shore Realty Co. Inc. 344 Mass. 81, 84 (1962). Compare James D. Shea Co. Inc. v. Perini Corp. 2 Mass. App. Ct. 912 (1975). Contrast Johnson-Foster Co. v. D’Amore Constr. Co. 314 Mass. 416, 420-422 (1943). Count 2, in which the plaintiff attempts to adapt essentially the same allegations to a claim for recovery on a negligence theory, fails to disclose any duty owed the plaintiff by the defendant to require the general contractor to obtain a payment bond for the benefit of subcontractors. See Restatement 2d: Torts, §§314, 315 (1965). See also Pridgen v. Boston Housing Authy. 364 Mass. 696, 710 (1974). No actionable deceit is alleged in Count 3, as the representation allegedly relied upon was so indefinite and imprecise as to render such reliance unreasonable as a matter of law. Compare Saxon Theatre Corp. of Boston v. Sage, 347 Mass. 662, 666-667 (1964); Stroscio v. Jacobs, 2 Mass. App. Ct. 827 (1974). Contrast Barrett Associates, Inc. v. Aronson, 346 Mass. 150, 152 (1963), and cases cited.
Order sustaining demurrer affirmed.
Judgment for the defendant.
