Powers Regulator Co. v. L.W. Taylor & Co.

• Decision Date: 29 November 1916
• Parties: POWERS REGULATOR CO. v. L. W. TAYLOR & CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 292

114 N.E. 356

POWERS REGULATOR CO.

v.L. W. TAYLOR & CO. et al.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 29, 1916.

Appeal from Superior Court, Bristol County.

Action by the Powers Regulator Company against L. W. Taylor & Co. and others. From the decree of the superior court in equity, certain of the defendants appeal. Modified and affirmed.

M. R. Hitch, of New Bedford, for appellant Geo. Howard & Sons Co.

Robert A. Terry, of New Bedford, for appellant Powers Regulator Co.

Edward A. Taft and L. R. Chamberlin, both of Boston, for appellant Richmond Radiator Co.

C. Harold Baldwin, of Boston, for appellants Gillette and others.

Sumner Robinson, of Boston, for respondent New England Iron Works Co.

A. M. Schwarz and S. A. Dearborn, both of Boston, for respondents Jenkins Bros.

Gaston, Snow & Saltonstall, of Boston (F. W. Bacon, of Boston, of counsel), for respondent Massachusetts Bonding & Ins. Co.

BRALEY, J.

The exceptions to the master's report having been overruled and the report confirmed by the interlocutory decree entered with the consent of the parties, the rights of the plaintiffs and interveners were left for determination on the pleadings and the findings of the master. While there were seven claimants who either brought suit or were joined as interveners, the final decree dismissed the bills as to the bonding company, the contractor, and five of the claimants, and the case is before us only on the appeal of four of the defeated claimants, and the trustees in bankruptcy of the contractor, plaintiffs in a cross bill, asking that the amount due under the contract from the city be ascertained and payment to them decreed. Masters v. Wayne Automobile Co., 198 Mass. 25, 84 N. E. 103. We shall refer to the contesting claimants as the appellants. The master reports that they furnished materials, or labor and materials as subcontractors in the erection and completion of the building, and that the debts due therefor as set forth in their respective statements remained unpaid. But to obtain the benefit of the bond given to the city by the bonding company as security for payment by the contractor of their several demands, each appellant was required to file with the officers who contract in behalf of the city, ‘a sworn statement of his claim within sixty days after the completion of the work.’ St. 1904, c. 349, re-enacted in St. 1909, c. 514, § 23. The remedy being created by statute a compliance with its provisions is requisite to the establishment of an equitable lien on the security. Tower v. Miller, 211 Mass. 113, 114, 97 N. E. 748. The reason why the claim should be filed as the statute requires is for the protection of the city as pointed out in Tower v. Miller. It is plain that if the office is vacated by resignation or failure of re-election the former incumbent owes no further duty of supervision and of administration to the municipality in whose behalf the contract was made. While under section 23, the security taken whether ‘by bond or otherwise’ can be marshalled for the benefit of those who perform of furnish labor or materials used, section 22 confers upon workmen a right of action against the city for unpaid labor, and if the plaintiff recovers the city can obtain indemnity under the bond where the instrument so provides. St. 1904, c. 349, R. L. c. 25, § 57. But if the signatory officers are not continued in office until the contract is fully performed and for sixty days thereafter, their successors clothed with the same powers become the officers, with each of whom the claim is to be filed. The officers during the entire period shown by the record who were empowered under the ordinances to execute contracts authorized by the city council for the erection of a new high school building were the mayor, and the chairman of the committee on city property. If the mayor and chairman who signed for the city had continued in office a filing of the claim with each of them would have satisfied the statute. But upon their retirement the claims should have been filed with their successors. The filing of a claim with the city clerk, or the city treasurer, or the clerk of the committee not having been authorized, and the claims of the appellants...