Mason v. Portland Const. Co.
| Decision Date | 03 May 1932 |
| Citation | 160 A. 477 |
| Parties | MASON v. PORTLAND CONST. CO. et al. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Cheshire County; Matthews, Judge.
Suit by Harry F. Mason against the Portland Construction Company and another. At the close of the evidence one of defendants moved that the bill be dismissed, and the case was transferred from the trial term without a ruling.
Bill dismissed.
Bill in equity, to recover from the Maryland Casualty Company for labor and materials furnished by the plaintiff to the Portland Construction Company. On June 20, 1922, the city of Keene advertised for bids for certain highway and bridge construction, and the Portland Construction Company was awarded the contract. On July 11 a bond was executed to secure the performance of the agreement; the construction company being named therein as principal, the Maryland Casualty Company as surety, and the city of Keene as obligee. The work was satisfactorily completed, and the city paid the construction company the agreed price. During the progress of the work the construction company engaged the plaintiff to perform the services for which he seeks recovery. It is conceded that the construction company is in bankruptcy and that the plaintiff has never been" paid. Trial by the court. At the close of the evidence the Maryland Casualty Company moved that the bill be dismissed. Transferred by Matthews, J., without a ruling.
Doyle & Doyle, of Nashua (Paul J. Doyle, of Nashau, orally), for plaintiff.
Demond, Woodworth, Sulloway & Rogers, of Concord (Jonathan Piper, of Concord, orally), for Maryland Casualty Co.
The bond in question was conditioned upon performance by the Portland Construction Company of the terms of the contract between that company and the city of Keene. The specifications which accompanied the advertisement for bids were made a part of the contract, and in the specifications the word "surety" is denned as the corporate body which engages to be responsible for the contractor's "payment of all debts pertaining to and for his acceptable performance of the work for which he has contracted."
In the contract itself the construction company agrees "to furnish and deliver all the materials and to do and perform all the work and labor" necessary to complete its undertaking. But this is not the equivalent of a promise to pay subcontractors. Babcock & Wilcox v. Surety Company (C. C. A.) 236 F. 340, 342. And such a promise is necessary before the casualty company can be held. ...
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...to him, because of liens for unpaid sub-contractors, labor and material for which he might otherwise be liable. Mason v. Portland Const. Company, 85 N.H. 487, 160 A. 477. The second is a performance bond, where the surety guarantees not only that the building will be completed within the co......
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...obligee. To such a waiver the respondents have no right to object. Our attention has been called to the case of Mason v. Portland Construction Co., 85 N. H. 487, 160 A. 477, 478, where the court, in its opinion, after stating the definition of surety contained in the specifications, disrega......