A.L. Smith Iron Works v. Maryland Cas. Co.
| Citation | 275 Mass. 74,175 N.E. 82 |
| Parties | A. L. SMITH IRON WORKS v. MARYLAND CASUALTY CO. et al. |
| Decision Date | 09 March 1931 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; W. A. Burns, Judge.
Action by the A. L. Smith Iron Works against the Maryland Casualty Company and others. From the decree, plaintiff appeals.
Affirmed.
J. Kruger, of Boston, for appellant.
J. W. Blakeney, Jr., of Boston, for appellees.
In July, 1924, the town of Winthrop made a written contract with a construction company for the erection of a high school building. At the same time the construction company, as principal, and the Maryland Casualty Company, as surety, executed and delivered to the town a bond containing this condition: ‘* * * if the Principal shall faithfully perform the Contract on his part, and satisfy all claims and demands, incurred for the same, and shall fully indemnify and save harmless the Owner [the town] from all cost and damage which he may suffer by reason of failure so to do, and shall fully reimburse and repay the Owner all outlay and expense which the Owner may incur in making good any such default, and shall pay all persons who have contracts directly with the Principal for labor or materials, then this obligation shall be null and void; otherwise it shall remain in full force and effect.’
The work to be performed under the construction contract has been completed. The plaintiff furnished to the construction company for use in the erection of the building structural steel; a substantial balance of the price of this material remains unpaid. The construction company has become financially irresponsible. The failure on the part of the construction company to pay the claim of the plaintiff constitutes a breach of the condition of the bond. A verbal request in behalf of the plaintiff was made on the counsel of the town to bring action on the bond for the benefit of the plaintiff. The request was refused. No written demand on the town has been made. By final decree the plaintiff's claim against the construction company was established, but the bill was dismissed against the other defendants because the plaintiff had failed to file a claim as provided in G. L. c. 149, § 29. That section provides that ‘Officers or agents who contract in behalf of any county, city or town for the construction or repair of public buildings or other public works shall obtain sufficient security, by bond or otherwise, for payment by the contractor and subcontractors for labor performed or furnished and materials used in such construction or repair; but to obtain the benefit of such security the claimant shall file in the office of...
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