Peerless Unit Ventilation Co. v. D'Amore Const. Co.

• Decision Date: 27 May 1933
• Parties: PEERLESS UNIT VENTILATION CO., Inc., v. D'AMORE CONST. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 121

186 N.E. 280

PEERLESS UNIT VENTILATION CO., Inc.,

v.D'AMORE CONST. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 27, 1933.

Report from Superior Court, Suffolk County; Patrick M. Keating, Judge.

Suit by the Peerless Unit Ventilation Company against the D'Amore Construction Company and others.

Superior Court confirmed master's report finding for plaintiff, and case is reported to Supreme Court.

Decree in accordance with opinion.

W. E. Cunningham, of Boston, for plaintiff.

A. Robinson, of Boston, for defendants.

LUMMUS, Justice.

This is a suit in equity to get the benefit of security for the payment by one Browne, a subcontractor, of $2,240 for labor and materials furnished by the plaintiff in the construction of a schoolhouse for the town of Watertown. The security was obtained under G. L. (Ter. Ed.) c. 149, § 29, and was in the form of a bond, running to the town, with the defendant D'Amore Construction Company, the general contractor, as principal, and the defendant the AEtna Casualty and Surety Company as surety. Furthermore, the defendant D'Amore Construction Company owes Browne $1,050, and holds that sum subject to the direction of the court upon an order given by Browne for the payment of that sum to the plaintiff; and the bill also seeks to obtain that sum. The order was subject to the conditions that payment to the plaintiff was not to be made unless a representative of Browne should be present nor until all disputes should be settled, and consequently, the defendant D'Amore Construction Company; which never formally accepted the order, was justified in withholding payment until the rights of the parties should be settled in this suit. The bill has now been taken for confessed against the defendant Browne, and the defendant D'Amore Construction Company concedes the right of the plaintiff to the amount of the order.

The superior court, after the confirmation of a master's report, ordered a final decree establishing the claim of the plaintiff against Browne for $2,240; directing the defendant D'Amore Construction Company to pay thereon the sum of $1,050 with interest from the filing of the bill on January 15, 1931, and the defendant the Aetna Casualty and Surety Company to pay thereon the balance of $1,190 with similar interest (said balance to be paid by said defendant to the town, and by the town to the plaintiff); and awarding costs to the plaintiff against the defendant D'Amore Construction Company. The case was then reported to this court.

Only the defendant D'Amore Construction Company defends the case in this court. Its defence is that the plaintiff did not file in the office of the town clerk a sworn statement of its claim within sixty days after it ceased to furnish labor or materials, as required by G. L. (Ter. Ed.) c. 149, § 29. The contract between the plaintiff and Browne was in writing. It provided for a sale of ventilating equipment to Browne, and excluded ‘erection, installation, personal supervision or inspection,’ except that the plaintiff offered to inspect for an additional charge, and the master found that inspection included the adjustment of the equipment to temperature degrees. The sworn statement was filed on December 20, 1930. The master, whose findings cannot be revised in the absence of the evidence, found as follows: ‘The actual work of construction and installation of ventilating units was completed by September 3, 1930, and adjustment of mechanical parts made immediately by the plaintiff on request of Mr. Browne. No further work of ‘adjusting’ was done thereafter except as later stated. * * * I find that about November 29, 1930, a door of a ventilating unit got broken, or was not properly installed, without fault of the plaintiff. That ultimately, after notice first to those more closely concerned, the plaintiff received notice from Mr. Browne and sent a mechanic who repaired it. On January 6, 1931, in consequence of a notice of trouble the plaintiff again sent a mechanic who repaired a lock and two dampers; while there the mechanic adjusted motors to proper speed. No bill was rendered for either service, nor separate payment made to the plaintiff and no evidence appeared as to the separate value of such service. I find that the plaintiff specifically provides in the ‘conditions' set out that its responsibility ceases upon delivery of material in good order, and I find that the plaintiff was not obligated to do any repair work by virtue of its contract. I find that it also was not obligated to install. Whether the work done November 29th was repair work or the result of faulty installation, I find that it was not done by virtue of any obligation under its contract. * * * I find that the service of January 6, 1931, included ‘adjusting.’ * * * I find, however, that this service was not included in the claim filed on December 20, 1930.'

The statute requiring security for payment for labor and materials furnished for public works is an outgrowth of the statute creating mechanics' liens...