Nash v. Com.
| Decision Date | 19 October 1899 |
| Citation | 174 Mass. 335,54 N.E. 865 |
| Parties | NASH v. COMMONWEALTH et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F.C. Nash and F.H. Nash, for appellant.
A.E Pillsbury and G.M. Palmer, for the Commonwealth.
The petitioner says that he furnished certain materials to Smith & Burden, contractors for the construction of an aqueduct for the commonwealth; that he has not been paid therefor, but that the commonwealth, by agreement with the contractor, and in accordance with Pub.St. c. 16, § 64, has retained in its possession a certain portion of the contract money for the payment of his and similar claims; and he seeks by this proceeding to have his claim paid out of that fund. The demurrer is for want of jurisdiction as against the commonwealth, and for want of equity.
The first question is whether the petitioner's claim is within Pub.St. c. 16,§ 64. We think that it is. It appears from this contract between Smith & Burden and the commonwealth that the aqueduct to be built was a large closed aqueduct, of masonry, about a mile long, in this state, and a part of the Metropolitan water system. It was to be built partly underground and partly upon embankments. We can have no doubt that such an aqueduct was a structure within the meaning of Pub.St. c. 191, § 1, and that, if it belonged to a private individual, a lien for labor performed and furnished, and for materials furnished and actually used, in its construction, could have been established. St.1851, c. 343, § 1; Truesdell v. Gay, 13 Gray, 311; St.1855, c. 431. See, also, Beatty v. Parker, 141 Mass. 523, 6 N.E. 754. The petition sufficiently sets forth that a large part of the materials furnished by the petitioner to Smith & Burden was actually used in the construction of the aqueduct.
The next question is whether there is in the custody of the commonwealth any money which it retains in compliance with the statute. It was the duty of the officers acting for the commonwealth to "obtain sufficient security by bond or otherwise for payment by the contractor and all sub-contractors for labor performed or furnished and for all materials used in the construction of" the work. Article 19 of the contract, so far as material, is as follows: "The commonwealth may keep any moneys which would otherwise be payable hereunder, and apply the same to the payment of *** all claims for labor or materials for the work, notice of which, signed and sworn to by the claimants, shall have been filed in the office of the board, or may *** apply such moneys thereto." There can be no doubt that this article is inserted in the contract for the purpose of complying with Pub.St. c. 16, § 64. The petitioner avers upon information and belief that the commonwealth, by virtue of this and other articles, has kept back and retained large sums of money due on account of said contract for the payment of such claims as have been filed under article 19, and now holds the same. From the allegations of the petition, therefore, it must be taken that the commonwealth has money in its hands which the law intends shall be security for the payment of the petitioner's bill, and that the money came to the commonwealth for that purpose.
It is objected by the respondent Casparis that, even if the money was so held by a private individual, the petitioner could not avail himself of it by any proceeding either at law or in equity, for want of privity of contract; and he relies in support of this proposition upon the familiar general rule that a stranger to a contract cannot sue either at law or in equity upon a promise made therein for his benefit; citing Ball v. Newton, 7 Cush. 599; Mellen v. Whipple, 1 Gray, 317; Marston v. Bigelow, 150 Mass. 45, 22 N.E. 71; New England Dredging Co. v. Rockport Granite Co., 149 Mass. 381, 21 N.E. 947; and several other similar cases. The rule is well established in this commonwealth, but there are certain exceptions to it, which are clearly stated in Mellen v. Whipple, 1 Gray, 317. In this case, however, the rule is not applicable. The case does not rest alone upon the provision in the contract, but upon that provision taken in connection with the statute. Under the provisions of law made for the petitioner's benefit, the commonwealth now has money which it holds as security for the payment of his claim. It holds the money as trustee for the petitioner, not simply by virtue of article 19 of the contract. The purpose of the statute was to secure the petitioner's claim, and the commonwealth, having retained a fund for the material men in compliance with the statute, is under an implied obligation to hold it for that purpose; and there is no doubt that a private party so situated could be held answerable in equity for the proper disposition of the fund. Merchants' & Traders' Nat. Bank v. Mayor, etc., 97 N.Y. 355.
The only remaining question is whether the commonwealth can be made a party to this suit. Of course, the commonwealth cannot be impleaded in its own ...
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