LaBonte v. White Const. Co., Inc., S--7747
| Decision Date | 07 February 1973 |
| Docket Number | No. S--7747,S--7747 |
| Citation | 363 Mass. 41,292 N.E.2d 352 |
| Parties | Norman G. LaBONTE v. WHITE CONSTRUCTION CO., INC. & another. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Elliott J. Mahler, Boston, for plaintiff.
John R. Gilbertson, for defendants.
Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY and KAPLAN, JJ.
This is a bill of complaint brought by the plaintiff under the provisions of G.L c. 149, § 29, 1 to obtain the benefit of a bond given by the defendant United States Fidelity & Guaranty Co. (surety), as surety, on which the defendant White Construction Co., Inc. (White), as general contractor is the principal and Triton Regional School District (district) is the obligee. The plaintiff, LaBonte, seeks to recover for equipment he furnished to the Boston Fill & Gravel Corp., a subcontractor of White.
On February 19, 1969, the district entered into an agreement with White for the construction of a school and, in compliance with G.L. c. 149, § 29, obtained the necessary security bond for labor, materials and equipment used to complete the work. It is agreed that the plaintiff's damages are $5,183, plus interest, if he is entitled to recover.
The suit was heard by a master who made subsidiary and general findings and reported to the Superior Court without decision on the issue of the plaintiff's right to obtain the benefit of the bond. An interlocutory decree was entered in the Superior Court overruling all exceptions and confirming the master's report. 2 The judge then reported the case without decision to this court.
It is agreed that the sole issue is whether LaBonte's sworn statement of claim was filed with the proper person within ninety days of the last date when LaBonte furnished equipment for the project. It is also agreed that if the statement was filed on, or before, November 9, 1970, 3 then it was seasonably filed.
We summarize the pertinent facts as found by the master. The Triton Regional School District comprises the towns of Rowley, Salisbury and Newbury. The district functions through a nine man board who elect a chairman and serve without pay. James H. Keeler, Jr., the elected chairman, was the contracting officer for the district.
The district invited bids in the usual manner for the construction of a school. Dr. Henry F. Trainor was the superintendent of schools for the district. He was responsible for developing the physical facilities, working with the architect, arranging for preparation of specifications and blueprints, and handling budgetary problems. The bids were filed with and received on behalf of the district by Dr. Trainor. He was thoroughly familiar with the terms of the contract. White was selected as general contractor and the contract between White and the district was signed by Keeler.
The last date on which LaBonte furnished equipment to Boston Fill, a subcontractor of White, was on August 11, 1970. On October 28, 1970, LaBonte's counsel sent a sworn statement of claim by registered mail to 'Triton Regional School Building Committee, Newbury, Massachusetts.' The official mailing address of the district was Box 367, 4 Rowley. This letter was returned to counsel on November 20, by the Newbury Post Office. The envelope was marked by postal personnel 'Notified Nov. 4, 1970.'
On October 28, 1970, LaBonte's counsel also sent a sworn statement with a filing fee to the clerk of the town of Rowley. Between October 28 and November 6, the envelope was forwarded to Dr. Trainor, superintendent of Triton Regional Senior-Junior High School, at the district's office. The statement, filing fee and letter were handed to Dr. Trainor on November 6 and his secretary typed these words on the notice of claim:
Keeler, the chairman of the district committee, was a full time employee of General Electric Company in Somersworth, New Hampshire, and only visited the district's office a few times a week after 6:30 P.M. Dr. Trainor, the sole daily on-the-scene executive, had been told by Keeler to accept statements and send them to counsel for the district, to counsel for White and to Keeler. Dr. Trainor had accepted at least three statements for the district, one of which was addressed to him. Keeler was aware that Dr. Trainor was accepting statements from claimants and he had instructed Dr. Trainor to acknowledge receipt of the statements.
On November 9, 1970, Dr. Trainor wrote to LaBonte's counsel explaining that the Rowley clerk had transmitted the notice of claim and other correspondence to Dr. Trainor; that Dr. Trainor was returning the check since liens should be filed with the district; that notice of claim should go to Keeler, 'Chairman, Triton Regional District School Committee, Glen Street, Rowley, Massachusetts, 01969' (Keeler's home address); and that when that had been done 'I shall be most happy to, then, direct your Notice of Lien to all parties concerned.' This letter bore a letterhead on which appeared the printed district seal, the words 'Triton Regional School District of Newbury, Rowley, Salisbury, Box 367, Rowley, Massachusetts, 01969' together with the words 'Henry F. Trainor, Superintendent' and 'Michael Paulovich, Assistant Superintendent.'
By November 10, 1970, the letter originally received by Dr. Trainor on November 6, had been returned to LaBonte's counsel. On that day LaBonte's counsel forwarded the same letter to 'Mr. James H. Keeler, Jr., Chairman, Triton Regional District School Committee, Glen Street, Rowley, Massachusetts, 01969.' The envelope was again received by Dr. Trainor who put a line through the words 'November 6, 1970,' which had been typed on the original receipt of the notice of claim, and wrote 'see below.' He then signed his name and added 'Rec'd. 12 noon Nov. 13, 1970.' This remailed statement of claim was never seen by Keeler.
It is clear from the master's report that Dr. Trainor received the notice of claim on November 6, 1970, within the ninety day limit. If Dr. Trainor is properly described as a 'contracting officer or agent' of the district then LaBonte's claim was seasonably filed. In the circumstances of this case, we believe that Dr. Trainor is properly described as an 'agent' of the district and thus was a proper person to receive the notice of claim. Since we hold that Dr. Trainor was a proper person to...
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