Bay State Dredging & Contracting Co. v. W.H. Ellis & Son Co.

• Decision Date: 17 March 1920
• Citation: 126 N.E. 468,235 Mass. 263
• Parties: BAY STATE DREDGING & CONTRACTING CO. v. W. H. ELLIS & SON CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 263

126 N.E. 468

BAY STATE DREDGING & CONTRACTING CO.

v.W. H. ELLIS & SON CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 17, 1920.

Case Reserved from Superior Court, Suffolk County; John F. Brown, Judge.

Suit by the Bay State Dredging & Contracting Company against the W. H. Ellis & Son Company and others. On reservation and report, on the pleadings, the master's report, the exceptions thereto, the interlocutory decree confirming the master's report as modified, and on the whole record, facts, and evidence, and all questions of law, for the consideration of the Supreme Judicial Court. Interlocutory decree affirmed, and cause remanded for decree in accordance with the opinion.

The following report was filed by Henry T. Richardson, the master to whom the cause was referred:

Pursuant to the rule, referring the above-entitled case to me as master, I have heard the parties and their evidence and the arguments by counsel, and now report to the court as follows:

This case was originally brought by the Bay State Dredging & Contracting Company against W. H. Ellis & Son Company, the Commonwealth of Massachusetts and the National Surety Company.

The bill alleged, in substance, that the W. H. Ellis & Son Company, in January, 1915, entered into a written contract with the commonwealth of Massachusetts for the construction of a certain public work, namely, a pier and steel shed in the city of New Bedford, and in pursuance of said contract and of the statutes of the commonwealth the commonwealth obtained security from the Ellis Company for the payment by it for labor performed or furnished and for materials used in the construction of said public work; that a part of said security was a bond, executed by the Ellis Company as principal, and the National Surety Company as surety; that the commonwealth had in its possession a large sum of money, due under its contract with the Ellis Company, which it was holding as security for said payments of labor and materials; that the work of the Ellis Company under said contract had been completed; that the plaintiff had performed certain labor and furnished certain materials for said public work under a contract with the Ellis Company, for which it claimed to be due it $30,089.14 and interest, and that it had duly complied with the requirements of the statute as to the filing of its claim. The bill sought to have the amount of the plaintiff's claim determined and the security above referred to applied to its payment.

The bill was brought in behalf of the plaintiff and all other creditors of the Ellis Company who might be permitted to join as parties plaintiff.

Thereafter intervening petitions were filed by various creditors of the Ellis Company, and two separate proceedings by other creditors pending in Bristol county, and one pending in Suffolk county, were, by order of the court, consolidated with the original case, and all said matters were ordered to be heard by me as master.

After several days of hearings, the original plaintiff, the Bay State Dredging & Contracting Company, settled its claim against the Ellis Company, and at the request of all parties I make no further report in connection with the claim of that plaintiff.

One of the intervening creditors, viz. the Central Lumber & Supply Company, also settled its claim against the Ellis Company, and no further report is made in connection with that claim.

There remains to be considered claims of the remaining intervening creditors and of the plaintiffs in the two Bristol county cases, and one Suffolk county, all of whom, for convenience, are hereinafter referred to as plaintiffs.

I find the following facts:

On the 5th of January, 1915, the board of harbor and land commissioners, acting for the commonwealth of Massachusetts, in accordance with the provisions of chapter 693 of the Acts of 1914, and the Revised Laws, duly and legally entered into a written contract with W. H. Ellis & Son Company for the construction of a pier and steel shed in the city of New Bedford. This contract was signed by a majority of the harbor and land commissioners, and duly approved by the Executive Council. No question is raised as to the validity of the original contract.

On the 6th day of January, 1915, the said W. H. Ellis & Son Company, as principal, and the National Surety Company, as surety, executed and delivered to the commonwealth of Massachusetts a bond in the penal sum of $50,000 conditioned upon the performance by said Ellis Company of said contract with the commonwealth of Massachusetts, a copy of said contract and bond being filed with this report and made a part hereof. Thereafter the Ellis Company began work under said contract, and from time to time entered into subcontracts with the remaining plaintiffs to furnish materials and perform labor of various kinds in connection with said pier, the particulars of which are set forth later in this report.

As the case originally stood, when the hearing before me began, it was the contention of the defendants that the Bay State Dredging & Contracting Company had not carried out its part of said contract, but in view of the settlement of the claim of the original plaintiff, I do not find it necessary to deal with that question.

While the work was progressing, viz. on the 11th day of April, 1917, the commonwealth of Massachusetts, acting by the commission on waterways and public lands, which commission had succeeded to the duties of the harbor and land commissioners, entered into a written modification of the original contract with the Ellis Company, a copy of which modification is attached to the original contract filed with this report. In substance, this modification relieved the Ellis Company of the performance of certain work provided for in the original contract, relating entirely to a driveway or approach to the pier.

The work proceeded, and on the 24th day of October, 1917, William F. Williams, the engineer in charge of the work in behalf of the commonwealth of Massachusetts, and the person referred to in article 2 of the contract, filed with the commission on waterways and public lands a so-called final certificate, in which he said:

‘I hereby certify that the construction of a solid fill pier and steel shed in New Bedford harbor in the city of New Bedford, under contract No. 205, between W. H. Ellis & Son Company and the commonwealth of Massachusetts, dated January 5, 1915, and as authorized by chapter 693, Acts of 1914, was completed September 4, 1917.’

Said certificate also included the final estimate of the cost of said work, as determined by the various items as fixed by the contract, and the cost of extra work, as determined by the contract.

From time to time the various plaintiffs filed with the harbor and land commissioners, or their successors, the commission on waterways and public lands, claims against the Ellis Company for work and labor, all of which claims I find to have been in proper form and in compliance with the statute, except as to the question of whether some of them were seasonably filed, which is hereinafter referred to. The parties have agreed as to the amount due the respective plaintiffs, if they are otherwise entitled to recover, and the sole issues remaining in this case are, whether certain of the plaintiffs seasonably filed their proofs of claim, and as to certain of them, whether the labor performed and the materials furnished are of such a character as permits them to recover in this proceeding. I proceed, therefore, to state the facts relative to each of the plaintiffs, as to matters thus in issue:

Joseph P. O'Connell: This plaintiff furnished to W. H. Ellis & Son Company cement, which was actually used in and became a part of said completed public work, and the Ellis Company owes this plaintiff therefor $3,424.28, with interest from November 28, 1917. A claim for this amount was filed with the commission on waterways and public lands, November 28, 1917. The materials in question were furnished between February 25, 1915, and January 21, 1917.

Coburn Trolley Track Manufacturing Company: This plaintiff furnished to the Ellis Company hardware and labor, all of which were actually used in and became a part of said completed public work, for which the Ellis Company owes the plaintiff $3,000, which, by agreement, is without interest. The materials and labor were furnished between August 23, 1916, and September 11, 1917. This plaintiff filed its claim with the commission on waterways and public lands on November 2, 1917.

Trussed Concrete Steel Company: This plaintiff furnished labor and materials to the Ellis Company, which were actually used in and became a part of the said completed public work, for which the Ellis Company owes it $1,198.27, which, by agreement, is without interest. The materials and labor were furnished between August 24, 1915, and May 21, 1917. It filed its proof of claim with the commission on waterways and public lands on June 19, 1917.

William C. Briggs and Charles E. Beckman, copartners doing business under the firm name of Briggs & Beckman: These plaintiffs furnished to the Ellis Company materials which were actually used and became a part of said completed public work, for which said Ellis Company owes it $167.31, which, by agreement, is without interest. Said materials were furnished between the 1st day of July, 1915, and the 2d day of February, 1916. This plaintiff filed its claim with the commission on waterways and public lands on December 14, 1915, and a second claim on March 1, 1917.

Flavien Cote: This plaintiff furnished to the Ellis Company materials which were actually used in and became a part of said completed public work, for which the Ellis Company owes him $775, which, by agreement, is without interest. These materials were furnished between July 10, 1915, and July 27, 1916. This plaintiff filed his claim with the board of harbor and land commissioners on July 17,...