Goldman v. City of Worcester

• Decision Date: 14 October 1920
• Citation: 128 N.E. 410,236 Mass. 319
• Parties: GOLDMAN v. CITY OF WORCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 319

128 N.E. 410

GOLDMAN

v.CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 14, 1920.

Exceptions from Superior Court, Worcester County; Franklin T. Hammond, Judge.

Action by Israel Goldman against the City of Worcester. Verdict for defendant, and plaintiff excepts. Exceptions overruled.Marvin M. Taylor, of Worcester, for plaintiff.

John W. Mawbey, City Sol. and Frank L. Riley, Asst. City Sol., both of Worcester, for defendant.

BRALEY, J.

The general rule at law is that interest is allowed upon the ground of contract either expressed or implied for its payment, or by way of damages where money is detained, or for breach in the performance of a contract where some duty has been violated. Dodge v. Perkins, 9 Pick. 368;Donahue v. Partridge, 160 Mass. 336, 35 N. E. 1071;Whitcomb v. Whitcomb, 217 Mass. 558, 105 N. E. 613. While equity generally follows the law, interest occasionally is allowed in the exercise of a sound discretion. Williams v. American Bank, 4 Metc. 317; Law v. East India Company, 4 Ves. Jr. 824. See Hollister v. Barclay, 11 N. H. 501.

The plaintiff accordingly must show that either his contract with the city provided for interest, or the amount retained to pay the claims of lienors had been wrongfully withheld. Burr v. Commonwealth, 212 Mass. 534, 99 N. E. 323. By the terms of the contract if at any time there shall be evidence of any lien or other claim for which if established the defendant ‘or the said premises might be liable directly or indirectly and which is chargeable to the contractor,’ the right is given to the city to retain out of any payment then due or thereafter to become due a sum sufficient completely ‘to indemnify it against any such claim.’ The defendant lawfully could hold the money represented by the checks which though drawn in the plaintiff's favor had not been delivered because of the pending bill in equity, brought under St. 1909, c. 514, § 23, to enforce payment of claims for materials furnished to, and of workmen employed on the building by a subcontractor who engaged to provide and to install the heating and ventilating plant. Tower v. Miller, 211 Mass. 113, 114, 97 N. E. 748.

The claims having been adjusted and the bill dismissed no legal advantage had accrued to either of the present parties over the other because of the litigation. Webb Granite & Construction Co. v. Worcester, 187 Mass. 385, 390, 391, 73 N. E. 639. And the defendant having on the day after entry of the decree delivered to the plaintiff the checks for the unpaid balance which were accepted, it is manifest that no interest is due for the temporary detention of the money. It is conceded in the record that during the period of litigation the defendant was credited with interest on its banking balance which having included the money ultimately...