Hunter v. City of Boston
| Decision Date | 11 September 1914 |
| Citation | 218 Mass. 535,106 N.E. 145 |
| Parties | HUNTER v. CITY OF BOSTON et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Gaston, Snow & Saltonstall, of Boston, for appellant.
Massachuetts Bonding & Ins. Co.
G. A Flynn, of Boston, for appellant City of Boston.
F. M Carroll, of Boston, for F. E. Cutler.
H. D Nunn, of Boston, for J. B. Hunter.
L. K. Clark, of Boston, for C. S. Waldo.
Smith, Baldwin & Shaw, of Boston, for W. A. Murtfeldt.
J. E. Crowley, of Boston, for M. J. Monahan.
E. A. Whitman and B. G. Davis, both of Boston, for Smith Erecting & Contracting Co. and another.
A. J. Daly, of Boston, for Austin Ford Sons Co.
W. L. Pullen, of Boston, for McLean & Cousens Co.
Jos. Wiggin, of Boston, for M. B. Foster Co.
J. S. Dean, of Boston, for W. H. Mitchell Sons Co.
J. F. Sullivan, of Boston, for J. J. Flynn.
The plaintiff furnished material in the construction of a bathhouse which one Mack (doing business under the firm name of Mack and Moore) agreed to build for the city of Boston. Mack was adjudicated a bankrupt on June 6, 1911, and at that time owed the plaintiff $560.75. Subsequently this bill in equity was brought by the plaintiff to procure payment out of $13,351.98 retained by the city when it made to Mack monthly payments on account, and also from a surety company who gave a bond to the city conditioned that Mack should 'faithfully furnish and do everything' required of him by the contract between him and the city. The plaintiffs claim that both the money retained and the bond given were obtained by the officers of the city in compliance with St. 1909, c. 514, § 23, the terms of which are set forth below in a note. [1] All other persons who had performed labor and furnished materials in the construction of the bathhouse were made parties defendant to the bill. In its answer the city alleged 'that since the acceptance of said building as completed, it has appeared that there were certain latent defects in the construction of said building due to the failure of Mack and Moore to construct said building in accordance with the plans and specifications; that as a result thereof the defendant has suffered great damage and claims the right to recoup therefor out of the funds in its hands as heretofore alleged.' The case was sent to a master under a rule directing him 'to hear the parties and their evidence, to find the facts and report his findings to the court, together with such facts and questions of law as either party may request.'
In spite of the terms of this order of reference (limiting the master to finding the facts which were put in issue by the pleadings), the master failed to pass upon the issue raised by the allegation of the city that it had been damaged by a failure on the part of Mack to perform his contract. We assume that the reason for this was a ruling which the master undertook to make (although he had no authority to make it under the order of reference in this case; see Clark v. Seagraves, 186 Mass. 430, 71 N.E. 813), to the effect that the city of Boston had no right in this suit to recoup the damages suffered by it in the premises. On the coming in of the master's report the city filed a cross-bill based upon these same damages, and on its motion the cause was recommitted to the master to find the damages suffered by the city. In a supplementary report the master found that the damages suffered by the city by reason of the failure of Mack to comply with the terms of his contract amounted to $4,750. A final decree was entered on the master's report, establishing the sums (amounting to $17,410.76) due from Mack to the several persons who had furnished material or performed labor in the construction of the bathhouse, and directing the city forthwith to pay over to these debtors of Mack their proportionate share of the $13,351.98 retained by the city; it also directed the surety company to pay to Mack's creditors the balance of the several sums due them, it declared that the city had no right to recoup its damages in this suit or in the crossbill, and it directed the surety company to pay to the plaintiff its costs of suit.
From this decree appeals were taken by the surety company and by the city of Boston.
1. We are of opinion that the bond given by the surety company was not given in compliance with St. 1909, c. 514, § 23, and that the surety company cannot be made liable to the plaintiff and the other materialmen.
The main argument on which the plaintiff bases his contention that the bond was given in compliance with the statute is that by the terms of the contract between the city and Mack, Mack agreed, in case it was ascertained on the final settlement that he was indebted to the city, to pay to the city the balance found to be due within one month after the determination of the amount of it. But the terms of the bond are that Mack shoudl 'faithfully furnish and do everything therein required of' him. This would seem to mean 'faithfully furnish material and do the work required of him by the contract.' This interpretation of the condition of the bond is reinforced by the terms of Mack's proposal to the city, which is a part of the contract between him and the city. It is there stated that the city is to pay Mack $64,650, as full payment for doing and completing the work, 'including everything furnished or done and every injury or loss sustained by the contractor in carrying on the work.' The terms and conditions of the bond correspond to the terms of the proposal which do not include payment of money by Mack to the city.
The provision made in the contract between Mack and the city for the retention of a portion of the monthly amount then apparently due to Mack, provides in terms that such sums should be deducted and retained (inter alia) 'to settle the claims for materials or labor furnished for carrying on the contract notice of which claims signed and sworn to by the claimants severally, shall have been filed' in the office of the defendant city or with its officers as specified in the contract. It is plain that this provision was made to comply with St. 1909, c. 514, § 23. In this respect the case is like Nash v. Commonwealth, 174 Mass. 335, 54 N.E. 865; Burr v. Massachuetts School for the Feeble Minded, 197 Mass. 357, 83 N.E. 883. The statute provides that sufficient security for those furnishing material or performing labor shall be obtained either 'by bond or otherwise,' not by both. In the case at bar the requirement of St. 1909, c. 514, § 23, having been complied with 'otherwise' than by bond, it cannot be held that the bond was given to comply with the statute.
It follows that so much of the decree as holds the defendant surety company liable and directs it to pay the costs to the plaintiff, was wrong.
2. We are also of opinion that so much of the decree was wrong as forbids the city of Boston to recoup its damages.
It is plain as matter of law and under the...
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