Kennedy v. Commonwealth

• Decision Date: 08 January 1903
• Citation: 65 N.E. 828,182 Mass. 480
• Parties: KENNEDY et al. v. COMMONWEALTH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

182 Mass. 480

65 N.E. 828

KENNEDY et al. v. COMMONWEALTH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1903

COUNSEL

Geo.

W. Norris and Howard D. Nash, for plaintiffs.

I. R Clark, for defendants.

OPINION

KNOWLTON, C.J.

The plaintiffs bring this bill in equity under Pub. St. c. 16, § 64, to enforce a claim for the price of lumber furnished to the defendants Harries and Letteney for use in the construction of a pumping station and gatehouse at Spot Pond Stoneham, by the commonwealth. That such a suit may be maintained if the petitioners have a claim that might be a subject of a mechanic's lien if the structure belonged to a private owner is established by the case of Nash v Com., 174 Mass. 335, 54 N.E. 865. The question in the present case grows out of the fact that the lumber did not enter into the construction of the pumping station and gatehouse as a part of the permanent structure but was bought and used for the purpose of constructing forms to hold the concrete in place while it was hardening, and centers to hold up the concrete arches, and was then taken down and used again for a similar purpose in another place, and, after being so used several times, was removed by the purchasers; some of it being finally sold for firewood, and the rest being carried to the yard of the purchasers in Boston. The plaintiffs contend that materials so used are within the provisions of Pub. St. c. 16, § 64. (Rev. Laws, c. 6, § 77), and the defendants contend that they are not. The statute provides for cases 'when public buildings or other public works upon which liens might attach for labor or materials, if they belonged to private persons, are about to be constructed or repaired for the commonwealth by contract,' and requires security for payment 'for all labor performed or furnished and for all materials used in such construction or repair.' We are of opinion that this statute gives security for the payment for labor performed or furnished and materials only when they are used in construction or repair in a way that would create a debt which might be a subject for a lien under proper proceedings if the structure belonged to a private person. There is nothing to indicate that security was intended to be given for every kind of labor and all kinds of materials that incidentally promote the construction of a building when they do not enter into the construction. Such an interpretation of the statute would give security to a dealer who had sold workmen tools which they used in working upon the building, or to a horse trader who sold the contractor horses which were used in drawing materials for the building; and it would give security upon the proceeds of every contract upon which...