Providence Elec. Co., Inc. v. Donatelli Bldg. Co., Inc., 74-258-A

• Decision Date: 06 May 1976
• Docket Number: No. 74-258-A,74-258-A
• Citation: 116 R.I. 340,356 A.2d 483
• Parties: PROVIDENCE ELECTRIC CO., INC. v. DONATELLI BUILDING CO., INC., et al. ppeal.
• Court: Rhode Island Supreme Court

Page 483

356 A.2d 483

116 R.I. 340

PROVIDENCE ELECTRIC CO., INC. v. DONATELLI BUILDING CO., INC., et al.

No. 74-258-Appeal.

Supreme Court of Rhode Island.

May 6, 1976.

[116 R.I. 347] Adelson & Chernick, Melvin A. Chernick, Providence, for plaintiff.

Marcaccio & Marcaccio, Thomas L. Marcaccio, Jr., Providence, for defendants.

OPINION

DORIS, Justice.

This is a civil action to recover on a labor and material payment bond. The cause was tried to a Superior Court justice sitting without a jury. From a judgment awarding the plaintiff the sum of $2,853.59, the defendants have appealed to this court.

The plaintiff instituted action against defendants by placing a claim on a labor and material payment bond executed and delivered by defendants to the town of North Providence pursuant to a building contract between defendant, Donatelli Building Co., Inc., and said town of North Providence. The bond, and building contract, are each dated August 25, 1966. It was stipulated at trial below that plaintiff sent notice of its claim to defendants and to the town of North Providence in December 1967.

In the complaint filed in Superior Court on May 17, 1968, plaintiff alleges that it furnished materials to Rhode Island Electric Co., Inc., a subcontractor of defendant, Donatelli Building Co., Inc., and that the subcontractor had become insolvent and bankrupt while indebted to plaintiff for the cost of said materials. The plaintiff further alleges that said materials were furnished for use in the construction of a public building, the Senior High School addition, belonging to the town of North Providence, and that the materials in question were used or reasonably required for use in the erection of said building.

The plaintiff claims to be entitled to payment under the said bond by virtue of G.L.1956 (1969 Reenactment) §§ 34-28-30 ¹ and 34-28-31. ² The defendants contend that the bond was furnished to the town as required by § 37-13-13 ³ and was therefore subject to the provisions of chapter 12 of title 37. The defendants argued that plaintiff's admitted failure to comply with the notice requirements of § 37-12-2 et seq., is a bar to plaintiff's claim for recovery under the bond.

The trial justice found that §§ 34-28-30 and 34-28-31 were applicable to plaintiff's claim and that plaintiff was not bound by the notice provisions contained in chapter 12 of title 37. The trial justice further found that §§ 34-28-30 and 34-28-31 were enacted into law by the Legislature in 1965 and in his opinion provide a new and broad remedy to a person performing labor or furnishing materials under or pursuant to a construction contract where a bond has been given to the owner, and the labor or materials are furnished on a subcontract under the contract between the owner and the person contracting with the owner. The trial justice found that under the stated sections it is not necessary that the claimant knew of the bond or relied on it, nor that the surety received notice from the claimant. He concluded that it was the intention of the Legislature to establish a remedy contrary to the existing common law but in addition to and independent of chapter 28 of title 34 (Mechanics' Lien Law) since under section 30, no notice of intention to claim a lien need be filed by the claimant to pursue his remedy thereunder.

Section 31 restates the law providing that a lien under §§ 34-28-1, 34-28-2 and 34-28-3 cannot attach to the property of a state or a municipality. However, it does preserve the remedy of § 34-28-30 where the state or municipality is the owner of the land.

The defendants argue that plaintiff is not entitled to recover because it has not complied with § 37-12-1 et seq., and § 37-13-1 et seq., and particularly § 37-13-13. The plaintiff, on the other hand, argues that because its remedy is provided by §§ 34-28-30 and 34-28-31 it is not required to comply with chapter 12 of title 37.

Where there are two repugnant statutory provisions, the provision which is most recent is to be preferred. Opinion to the Governor, 78 R.I. 144, 80 A.2d 165 (1951). Sections 34-28-30 and 34-28-31 are clearly later in time than chapter 12 of title 37. It is also true that repeals by implication are not favored and courts should attempt to construe two statutes that are in apparent conflict so that, if at all reasonably possible, both statutes may stand and be operative. State v. Bradshaw, 101 R.I. 233, 221 A.2d 815 (1966). Where a question arises as to whether one statute repeals an earlier one or is in conflict with it, the court should endeavor to determine the intention of the Legislature. Landers v. Reynolds, 92 R.I. 403, 169 A.2d 367 (1961), citing 82 C.J.S. Statutes § 298b; see also Lederer Realty Corp. v. Hopkins, R.I. 71 A. 456 (1908).

In some cases a supplier may be owed a very large sum and may desire that he be given prompt periodic payments on a regular basis. This could be accomplished by means of multiple notices at short periods under the provisions of chapter 12 of title 37. In other cases a supplier may be expecting few payments or only one payment for a number of small purchases which would not warrant sending multiple periodic notices for payment. In the latter situation or those similar to it, the supplier could rely on §§ 34-28-30 and 34-28-31. The provisions of the later sections protect the supplier against the sudden insolvency of the contractor or subcontractor while the provisions of chapter 12 of title 37 do not give such protection to the supplier. It is clear that the Legislature intended to give such protection to a supplier under the provisions of §§ 34-28-30 and 34-28-31.

The defendants rely on Worthington Air Conditioning Co. v. Lincoln & Lane Co., 106 R.I. 575, 261 A.2d 853 (1970), wherein this court stated that compliance with the provisions of § 37-12-1 et seq. is a prerequisite to a suit on a labor and material payment bond. The record in Worthington, however, indicates that although the action was brought and decided after the enactment of §§ 34-28-30 and 34-28-31, it does not appear that the remedy provided by these sections was raised or argued. The only question for determination by that court was whether the remedy sought by the plaintiff was under the common law or under chapter 12 of title 37. Furthermore, a reading of the bond in the Worthington case shows that it provided for the incorporation by reference of the conditions set forth in the contract to which the bond related. A condition of the Worthington contract required the contractor to furnish a bond that conformed to the various statutory requirements. Donatelli's contract contains no such undertaking.

We are bound in construing statutes to ascertain the intent of the Legislature and to effectuate that intent whenever it is lawful and within legislative competence. Town of Scituate v. O'Rourke, 103 R.I. 499, 239 A.2d 176 (1968).

We hold that the intent of the Legislature in enacting §§ 34-28-30 and 34-28-31 was to provide a remedy for a supplier of labor and/or material to recover on a bond, said remedy to be in addition to the remedy provided for in chapter 12 of title 37, and that a claimant under §§ 34-28-30 and 34-28-31 is not required to comply with the notice provisions of chapter 12 of title 37.

The trial justice in his decision found that

'Plaintiff did furnish to Rhode Island materials for use on its contract with Donatelli for the construction of the North Providence Senior High School Addition and these materials were used and were reasonably required for use under the contract and the amount due pl...