Ninth Sch. Dist. of Manchester v. Rogers

• Decision Date: 31 October 1924
• Citation: 145 N.E. 278,250 Mass. 193
• Parties: NINTH SCHOOL DIST. OF MANCHESTER v. ROGERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 193

145 N.E. 278

NINTH SCHOOL DIST. OF MANCHESTER

v.ROGERS.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 31, 1924.

Appeal from Superior Court, Hampden County; W. C. Wait, Judge.

Suit in equity by the Ninth School District of Manchester against Fisk G. Rogers, trustee in bankruptcy of the Flynt Building & Construction Company, to impress certain moneys with trust, which subsequent to bankruptcy proceedings it had paid and bankrupt had received for purpose of paying for labor and materials entering into construction of recreation building for plaintiff, in which defendant in cross-bill seeks to recover money claimed due bankrupt. From interlocutory and final decrees, defendant appeals. Affirmed.D. Lavigne and I. R. Shaw, both of Springfield, for appellant.

W. G. Brownson, of Springfield, for appellee.

PIERCE, J.

This was a suit in equity brought against the trustee in bankruptcy of the Flynt Building & Construction Company to impress with a trust certain moneys, which, subsequent to the bankruptcy proceedings, it had paid and the bankrupt had received for the purpose of paying for labor and materials entering into the construction of a recreation building for the plaintiff, which specific sums of money the company had diverted to other purposes. The plaintiff's bill of complaint was dismissed by decree of the superior court and no appeal was taken.

The trustee in bankruptcy in a cross-bill seeks to recover of the plaintiff the sum of $25,028.40, which he claims is due the estate of the bankrupt under ‘clause 8’ of the contract, less the aggregate amount of all payments made to the bankrupt prior to the bankruptcy proceedings. The plaintiff seeks to deduct the amounts paid by it after the institution of bankruptcy proceedings for the purpose of canceling obligations incurred by the bankrupt under the contract, $13,258.53, and in addition thereto the further sum of $12,352.87 to certain creditors of the bankrupt.

[1] By reason of the law that the estate of a bankrupt is in custodia legis from the filing of the petition, and that the title of the trustee relates back to that date (Alexander v. Smithe Machine Co. [Mass.] 143 N. E. 321;Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300, 32 S. Ct. 96, 56 L. Ed. 208;Everett v. Judson, 228 U. S. 474, 33 S. Ct. 568, 57 L. Ed. 927, 46 L. R. A. [N. S.] 154;Bailey v. Baker Ice Machine Co., 239 U. S. 268, 36 S. Ct. 50, 60 L. Ed. 275;Fairbanks Steam Shovel Co. v. Wills, 240 U. S. 642, 36 S. Ct. 466, 60 L. Ed. 841), the plaintiff could not lawfully have made such payments, unless it was required to do so by an express contract or by a non-contractual obligation which was imposed by virtue of some mechanic's lien, by virtue of some special statute, or by virtue of the doctrine of subrogation. No contention is made that the bankrupt or the trustee authorized these payments; and the master finds that there is in Connecticut, where the building was erected, no lien on public buildings such as this, for labor performed, or labor and materials furnished in the erection thereof.

Section 5221 of General Statutes of Connecticut, concerning claims for labor and materials used or employed in and for the construction of public buildings, reads as follows:

‘Any officer or agent contracting in behalf of the state or any subdivision thereof for the construction * * * of any public building * * * shall require from each contractor, as a condition precedent to the execution of a contract for any such construction, * * * a bond with sufficient surety, which bond shall be conditioned for the faithful execution of the contract according to its provisions and for the payment for all materials and labor used or employed in the execution of such contract. Any person, firm or corporation having any claim for materials or labor furnished in the execution of any such contract, shall file with the officers or agents contracting for any such construction, * * * a statement of such claim within sixty days after he ceased to furnish such materials or labor, which claim, if correct, shall be paid by such officer or agent, who shall recover the amount thereof with costs from the surety on such bond.’

It is conceded, and the master found, that the plaintiff is a subdivision of the state of Connecticut within the meaning of the above statute.

[2] It is further found by the master, and it is not...