J. J. Struzziery Co. v. A. V. Taurasi Co.
| Decision Date | 14 February 1961 |
| Parties | J. J. STRUZZIERY CO., Inc. et al. v. A. V. TAURASI CO., Inc., et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Benjamin C. Perkins, Boston (Joseph E. Levine, Alphonse Sancinito, Robert K. Lamere, and Howard W. Robbins, Boston, with him), for interveners.
John W. Blakeney, Boston, for respondent, Continental Casualty Co.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK and SPIEGEL, JJ.
These are appeals from a final decree after rescript by eight intervening petitioners claiming to be aggrieved by the failure of that decree, entered April 13, 1960, to include interest on the several claims.
The suit is by the original petitioner, J. J. Struzziery Co., Inc., and intervening petitioners against A. V. Taurasi Co., Inc. (Taurasi), Continental Casualty Company, and the Commonwealth of Massachusetts under G.L. c. 30, § 39, to enforce claims for furnishing labor, materials and equipment to Taurasi in connection with the construction of a section of State highway pursuant to a contract between the Commonwealth and Taurasi. The petitioners sought to reach sums retained by the Commonwealth constituting, together with a payment and performance bond given by Taurasi as principal and Continental Casualty Company as surety, the statutory security for satisfaction of their claims. The case was heard in the Superior Court and on July 31, 1958, a final decree establishing the claims of twelve petitioners found to be entitled to participate in the security was entered. At some time prior to that final decree the petitioners waived interest. The Commonwealth appealed from this decree, and on March 8, 1960, this court affirmed it. J. J. Struzziery Co., Inc. v. A. V. Taurasi Co., Inc., 340 Mass. 481, 165 N.E.2d 120. On April 13, 1960, a final decree after rescript was entered in the Superior Court providing that the twelve petitioners were entitled to payment of their claims without interest. They sought to have included in the final decree after rescript a computation of interest running from July 31, 1958, the date of the original final decree. This the court declined to do. It is because of this refusal to add interest to the amounts set forth in the final decree after rescript as being due to them that the appeals are taken.
While it is the general principle that there can be no appeal from a final decree entered in accordance with a rescript from this court (Cole v. Holton, 274 Mass. 238, 239, 174 N.E. 468), an appeal may, however, be taken from a final decree after rescript to determine whether that decree conforms with the rescript. Carilli v. Hersey, 303 Mass. 82, 85, 20 N.E.2d 492; Town of Wayland v. Lee, 331 Mass. 550, 551, 120 N.E.2d 641. That is the basis of these appeals. The appellants contend that the rescript handed down from this court included interest from the date of the original final decree entered in the Superior Court whereas the final decree after rescript specifically excluded interest and that therein lies the nonconformity. The contention of the appellants is correct.
The rescript of this court upholding the final decree of the Superior Court carried with it an allowance of interest. G.L. c. 235, § 8....
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