E.I. Dupont De Nemours Powder Co. v. Culgin-pace Contracting Co.

• Decision Date: 25 October 1910
• Parties: E. I. DUPONT DE NEMOURS POWDER CO. v. CULGIN--PACE CONTRACTING CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 585

92 N.E. 1023

E. I. DUPONT DE NEMOURS POWDER CO. v. CULGIN--PACE CONTRACTING CO. et al.

Supreme Judicial Court of Massachusetts, Hampden.

October 25, 1910

Oct 25, 1910.

COUNSEL

Doherty & Brownson, for plaintiff.

C. G Gardner and R. W. Stoddard, for defendants.

OPINION

BRALEY J.

The master, to whose report no exceptions were taken, finds that the Culgin-Pace Contracting Company, having made a written contract with the city of Springfield to build a dam, reservoir, and intake tunnel, which upon completion were to become a part of the city's water supply, bought of the plaintiff and used in the construction of the works the powder and fuses charged in the account annexed to the bill. Before it was finished, but at what stage of completion is not stated, the contractor, apparently having become insolvent, abandoned the work, leaving the plaintiff's claim unpaid. The plaintiff, however, within 60 days of the abandonment having filed with the proper officers of the city a sworn statement of its claim for materials furnished, as required by St. 1904, c. 349, can maintain the bill for equitable relief if the bond given to the city by the contractor, and on which the Title Guaranty & Surety Company, the remaining defendant, is the surety, comes within the provisions of the statute. Friedman v. County of Hampden, 204 Mass. 494, 506, 507, 90 N.E. 851; Kennedy v. Com., 182 Mass. 480, 65 N.E. 828. It is not contended by this defendant that the condition of the bond cannot be so construed. By the terms of the contract the contractors agreed 'to furnish sufficient security by bond or otherwise for payment by the contractors and subcontractors for labor performed and furnished, and for materials used in said construction in accordance with the provisions of the act of 1904, chapter 349.' It is to be presumed that the attorney of the surety company, who executed the bond in its behalf, knew not only of the statute, but that this clause, from the very terms employed, was intended to be a strict compliance with it. Adams v. Essex, 205 Mass. 189, 91 N.E. 557. Indeed, the master states that this was the purpose of the parties, and that no other form of security was taken by the city. If we now examine the bond, the instrument, after having provided indemnity for the obligee if the principal failed to perform the contract according to the plans and specifications, and to protect the city from the payment of damages, costs, and judgments in other specified cases, recites, 'And the said principal and sureties hereby further bind themselves, their successors, heirs, executors and administrators, jointly and severally, to repay to said city any sum which said city may be compelled to pay to any contractors or subcontractors for labor performed, or furnished, and for materials used in such construction under the provisions of the Acts of 1904, chapter 349.' By the reference, the statute is incorporated with the same effect as if its provisions had been repeated. Derby Desk Co. v. Connors Bros. Construction Co., 204 Mass. 461, 468, 469, 90 N.E. 543.

The intention that it should be applicable is free from doubt but if literally construed the indemnifying promise with the statute omitted is meaningless when applied to the facts. No lien in favor of the plaintiff could attach to the land as against the city, nor could the city be compelled in an action of contract to pay a debt which it never contracted or authorized. To give the condition in question this restricted construction would nullify the effect of the reference, an defeat one of the boejcts for which the bond was...