A. Belanger & Sons, Inc. v. Joseph M. Concannon Corp.
| Decision Date | 01 July 1955 |
| Citation | 127 N.E.2d 670,333 Mass. 22 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | A. BELANGER & SONS, Inc. v. JOSEPH M. CONCANNON CORPORATION et al. |
James G. Fay, Boston, for plaintiff.
Frank D. Branca, Dorchester (Frank Mulredy, Boston, with him), for defendant Peerless Casualty Co.
Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.
This is a bill in equity by the plaintiff, hereinafter called Belanger, against the Joseph M. Concannon Corporation, hereinafter called Concannon, the Peerless Casualty Company, hereinafter called Peerless, and the Stoughton Housing Authority, hereinafter called the authority. Belanger was a subcontractor of Concannon which had a contract with the authority to build a State aided housing project in Stoughton. Belanger furnished Concannon materials for this job. Peerless was the surety on a statutory performance bond furnished by Concannon to the authority. G.L.(Ter.Ed.) c. 121, § 26V, as appearing in St.1946, c. 574, § 1, which incorporated by reference §§ 28 and 29 of G.L. (Ter.Ed.) c. 149.
It is undisputed that Belanger furnished materials to Concannon which were never paid for. It is also undisputed that Belanger filed a sworn statement of its claim with the authority within the time required by law, and the judge so found.
A final decree was entered ordering Peerless to pay Belanger the sum of $2,087.51 for said materials with interest and costs. The bill was taken for confessed against Concannon and dismissed as to the authority. The case comes here upon an appeal by Peerless from the final decree. There was no error.
The only question before us is whether the filing of the sworn statement of claim with the authority was in compliance with the pertinent statutes. Chapter 121, § 26V, reads in part, Section 29 of c. 149, as appearing in St.1938, c. 361, reads in part, 'Officers or agents who contract in behalf of any county, city or town for the construction * * * of public buildings * * * shall obtain sufficient security, by bond or otherwise, for payment by the contractor * * * for * * * materials used or employed in such construction * * * but in order to obtain the benefit of such security the claimant shall file in the office of the county treasurer or of the city or town clerk a sworn statement of his claim within sixty days after the claimant ceases to * * * furnish * * * materials * * *.' Chapter 121, § 26V, was presumably enacted because of the decision in Johnson-Foster Co. v. D'Amore Construction Co., 314 Mass. 416, 50 N.E.2d 89, 148 A.L.R. 353, which in substance held that § 29 of c. 149 relating to bonds for materials furnished was not applicable to housing authority contracts.
It may be of interest to note that by § 28 of c. 149, as appearing in St.1948, c. 550, § 30, which relates to claims for unpaid labor on public works, the notice of claim must be filed in the clerk's office of the city or town against which such right of action is asserted.
Peerless contends that the statement of claim should have been filed with a county treasurer or with the town clerk of Stoughton. By inference at least it seems to rely upon Philip Carey Manufacturing Co. v. Peerless Casualty Co., 330 Mass. 319, 113 N.E.2d 226. But that case did not even remotely consider the question which now concerns us. It merely decided that, no sworn statement having been filed with anybody, the subcontractor could not secure the benefit of the statutory performance bond. We are of opinion that the contention of Peerless cannot be sustained.
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