Hobart-Farrell Plumbing & Heating Co. v. Klayman

• Decision Date: 09 March 1939
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: HOBART-FARRELL PLUMBING & HEATING CO., Inc, v. KLAYMAN et al.

302 Mass. 508

19 N.E.2d 805

HOBART-FARRELL PLUMBING & HEATING CO., Inc,

v.KLAYMAN et al.

Supreme Judicial Court of Massachusetts, Norfolk.

March 9, 1939.

Petition by the Hobart-Farrell Plumbing & Heating Company, Inc., against William Klayman and others to obtain the benefit of a surety company bond given as security by defendant contractor to town of Avon for the repair of a schoolhouse. From an interlocutory decree confirming the master's report and a final decree dismissing petition as against the town and the surety company, the petitioner appeals.

Interlocutory decree affirmed; final decree affirmed, with costs.Appeal from Superior Court, Norfolk County; Williams, Judge.

G. W. Arbuckle, of Quincy, and O. V. Fortier, of Brockton, for appellant.

S. Macmillan and F. L. Wiegand, Jr., both of Boston, for respondent Seaboard Surety Co.

J. L. Sheehan, of Boston, for Town of Avon.

LUMMUS, Justice.

This is a petition in equity to obtain the benefit of a surety company bond given as security under G. L. (Ter.Ed.) c. 149, § 29 (St.1935, c. 472, § 2), to the respondent town by a contractor for the repair of a schoolhouse. The contractor owes the petitioner for labor furnished and materials used in installing a heating system in the schoolhouse. The statute cited provides that ‘to obtain the benefit of such security the claimant shall file in the office of the * * * town clerk a sworn statement of his claim’ within a certain time. The only question is, whether such a statement was filed.

The evidence is not reported, and the master's conclusions do not appear to be based exclusively upon subsidiary findings stated. The master found that the petitioner's attorney mailed a sufficient statement, postage prepaid, properly addressed to the town clerk, in season to be delivered in the ordinary course of mail within the time allowed by the statute. Though the return address of the attorney was on the envelope, it has never been returned. But the town clerk, whose office was at his house, testified that when asked to produce the statement he searched for one among his files and found none, and that ‘to the best of his knowledge’ he never received such a statement. The master found that no such statement was ever received by the town clerk or his wife, who was his only assistant.

If neither the town clerk nor his only assistant ever received the statement, it could not have been filed in his office, for filing requires the placing of the document filed in the official custody of the filing officer. Reed v. Action, 120 Mass. 130; Gorski's Case, 227 Mass. 456, 460, 116 N.E. 811;Greenfield v. Burnham, 250 Mass. 203, 210, 145 N.E. 306;Powers Regulator Co. v. Taylor, 225 Mass. 292, 298, 114 N.E. 356;Otis Elevator Co. v. Long, 238 Mass. 257, 267, 130 N.E. 265;McClintic-Marshall Co. v. New Bedford, 239 Mass. 216, 222, 131 N.E. 444;United States v. Lombardo, 241 U.S. 73, 76, 36 S.Ct. 508, 60 L.Ed. 897;In re Gubelman, 2 Cir., 10 F.2d 926, 929;Berlin v. Commissioner of Internal Revenue, 2 Cir., 59 F.2d 996, 997;Commercial Standard Ins. Co. v. Garrett, 10 Cir., 70 F.2d 969, 975.Poynor v. Commissioner of Internal Revenue, 5 Cir., 81 F.2d 521.

After an interlocutory decree confirming the master's report, a final decree was entered, dismissing the petition as against the town and the surety company. The petitioner appealed from both decrees. It contends that on the facts found the conclusion was required that the statement was received...