Burr v. Massachusetts School for the Feeble-Minded

Knowlton, C. J. The plaintiff is the trustee in bankruptcy of the H. P. Cummings Company, a corporation, and he brings this action against the Massachusetts School for the Feeble-Minded, to recover a balance due upon a contract for the construction of the “Boys’ and Girls’ Home at Waverly.” This contract was made under the authority of the St. 1905, c. 444, the money paid for the building was furnished to the Massachusetts School for the Feeble-Minded by the Commonwealth, and the balance alleged to be due on the contract has been paid into court under an answer by way of interpleader, setting up an equitable defence in favor of certain claimants. This balance, which amounts to $6,408.94, is twenty per cent of the value of the labor and materials furnished under the contract, which was retained under Article IX. of the contract. The question is whether certain parties who were employed by the H. P. Cummings Company to furnish labor and materials for the construction of the building, and who have not been paid, and who appeared in court as claimants, are entitled in equity to be paid out of this fund. The R. L. c. 6, § 77, is as follows: “ Officers or agents who contract ixi behalf of the Commonwealth for the construction or repair of public buildings or other-public works shall obtain [359] sufficient security, by bond or otherwise, for payment by the contractor and sub-contractors for labor performed or furnished and for materials used in such construction or repair; but in order to obtain the benefit of such security, the claimant shall file with such officers or agents, a sworn statement of his claim, within sixty days after the completion of the work.” In Article IX. of the contract is the following provision : “ If at any time there shall be evidence of any lien or claim for which, if established, the owner of the said premises might become liable and which is chargeable to the contractor, the owner shall have the right to retain out of any payment then due or thereafter to become due an amount sufficient to completely indemnify him against such lien or claim.” The statute and this provision are to be considered together in determining the rights of the parties. Each of the claimants filed with the trustees of the Massachusetts School for the Feeble-Minded, within sixty days after the completion of the work, a sworn statement of his claim for labor performed or furnished, and for materials used in the construction of the buildings. The first question is whether the Massachusetts School for the Feeble-Minded was an officer or agent that contracted in behalf of the Commonwealth. The judge before whom the ease was tried found and ruled that it was, and we think it plain that this decision was correct. The buildings were erected on land of the Commonwealth, and the money to be paid for them was furnished by the Commonwealth. The relations of this institution to the Commonwealth are shown in part by the R. L. c. 87, §§ 113 to 123. The salaries and wages of all the officers and employees, and all bills for supplies and other expenses of the institution were paid from the treasury of the Commonwealth. R. L. c. 87, § 127. Acts and resolves relating to the subject, passéd almost every year for many years, are referred to in the agreed statement of facts. This is a corporation through which the Commonwealth carries on charitable work, and in reference to these buildings it was an agent contracting in behalf of the Commonwealth. It was its duty, under the statute, in making the contract, to obtain security for the payment of these claimants. The statute was enacted to give contractors, furnishing labor and materials [360] in the erection of a building owned by the Commonwealth, security equivalent to the lien which the law creates upon the property of other owners in like cases. In the Pub. Sts. c. 16, § 64, the words are: “ When public buildings or other public works upon which liens might attach for labor or materials, if they belonged to private persons, are about to be constructed or repaired for the Commonwealth by contract, the officers or agents,” etc. R. L. c. 6, § 77. The object of the contract is to relieve such contractors from the effect of their inability to maintain an action against the Commonwealth for the enforcement of a lien. The parties must be presumed to have known of this statute when they made the contract before us. They inserted in the contract this provision, which plainly refers to the general subject of securing contractors for debts due for labor or materials. Presumably they had a purpose in it, and it must be given meaning if possible. If it is construed strictly and narrowly, in accordance with the plaintiff’s contention, it has no possible application to the subject of the contract. Against the Commonwealth as an owner there can be no lien or claim for labor or materials for which the Commonwealth might be liable, and which is chargeable to the contractor, because there is no statute giving a lien against the property of the Commonwealth. The distinction arises because the Commonwealth is not an ordinary party, is not suable in the ordinary way, and does not acquire property for ordinary uses. To give this clause any effect the word “ owner ” must be held to have been used in the sense of an ordinary owner, or an owner apart from peculiar qualities as a sovereign State, affecting the liability to suits:and the creation of liens. If the clause were read, “ a lien or claim for which, if established, an ordinary owner of said premises might become liable,” etc., it would be free from ambiguity. If we read it in this way, we give effect both to the statute and the provision of the contract. If we give it the other meaning, the statute is set at defiance, and the provision is inapplicable to the subject with which the parties were dealing. We think it should be so construed as to give it effect. In Nash v. Commonwealth, 174 Mass. 335, and Kennedy v. Commonwealth, 182 Mass. 480, this statute was considered, and [361] it was held that a contract under it gives the contractors an equitable interest in the property held by the agent of the Commonwealth as security. We are of opinion that a decree should be entered sustaining the equitable defence set up in the answer, and directing payment to be made to the claimants of the fund. O. B. Gleason, (L. K. Storrs with him,) for the claimants John Farquhar’s Sons and another. H. 0. Joyner, for the claimants James A. McIntosh and others. J. Oavanagh, for the claimants Berry and Ferguson and others. B. Malone, Attorney General, J. F. Ourtis, Assistant Attorney General, for the Massachusetts School for the Feeble-Minded, were given leave to file a brief. A. F. Burr, trustee, pro se. So ordered.