E. I. Dupont DeNemours Powder Co. v. Culgin-Pace Contracting Co.

Braley, J. The master, to whose report no exceptions were taken, finds that the Culgin-Pace Contracting Company, having made a written contract with the city of Springfield to build a dam, reservoir and intake tunnel, which upon completion were to become a part of the city’s water supply, bought of the plaintiff and used in the contraction of the works the powder and fuses charged in the account annexed to the bill. Before it was finished, but at what stage of completion is not stated, the contractor, apparently having become insolvent, abandoned the work leaving the plaintiff’s claim unpaid. The plaintiff, however, within sixty days of the abandonment having filed with the proper officers of the city a sworn statement of its claim for materials furnished, as required by St. 1904, c. 349, can maintain the bill for equitable relief if the bond given to the city by the contractor, and on which the Title Guaranty and Surety Company, the remaining defendant, is the surety, comes within the provisions of the statute. Friedman v. County of Hampden, 204 Mass. 494, 506,507. Kennedy v. Commonwealth, 182 Mass. 480. It is contended by this defendant that the condition of the bond cannot be so construed. By the terms of the contract the contractors agreed “ to furnish sufficient security by bond or otherwise for payment by the contractors and sub-contractors for labor performed, or furnished, and for materials used in said construction in accordance, with the provisions of the Acts of 1904, chapter 349.” It is to be presumed that the attorney of the surety company who executed the bond in its behalf knew not only of the statute, but that this clause from the very terms employed was intended to be a strict compliance with it. Adams v. County of Essex, 205 Mass. 189, 197. Indeed, the master states that this was the purpose of the [589] parties, and that no other form of security was taken by the city. If we now examine the bond, the instrument, after having provided indemnity for the obligee if the principal failed to perform the contract according to the plans and specifications and to protect the city from the payment of damages, costs, and judgments in other specified cases, recites, “ and the said principal and sureties hereby further bind themselves, their successors, heirs, executors and administrators jointly and severally, to repay to said city any sum which said city may be compelled to pay to any contractors or sub-contractors for labor performed or furnished and for materials used in such construction under the provisions of the Acts of 1994, chapter 349.” By the reference, the statute is incorporated with the same effect as if its provisions had been repeated. Derby Desh Co. v. Conners Brothers Construction Co. 204 Mass. 461, 468, 469. The intention, that it should be applicable, is free from doubt, but if literally construed, the indemnifying promise with the statute omitted is meaningless when applied to the facts. Ho lien in favor of the plaintiff could attach to the land as against the city, nor could the city be compelled in an action of contract to pay a debt which it never contracted or authorized. To give the condition in question this restricted construction would nullify the effect of the reference and defeat one of the objects for which the bond was given. Such a construction ought not to be adopted, and the general purpose, having been expressed, is to be given full effect, and must control. Morrell & Whiton Construction Co. v. Boston, 186 Mass. 217. Burr v. Massachusetts School for the Feeble-Minded, 197 Mass. 357, 360. It is, of course, true, as the surety urges, that the plaintiff is not a party to the instrument, but the statute treats the bond as security for the payment of the debts of the principal where, in the application of the law relating to the subject, mechanics’ liens would attach for either labor or materials if the owner of the realty were a private person, and confers upon the plaintiff an enforceable interest as if the bond were a fund created for its benefit. If because of other claimants who have the right of participation, and whose claims have been ascertained and established, the penal sum is insufficient to pay all parties in full, then they would share in proportion to the amount due to each. Fried [590] man v. County of Hampden, 204 Mass. 494, 497. R. L. c. 197, § 20. Sexton v. Weaver, 141 Mass. 273, 278. Dahlborg v. Wyzanski, 175 Mass. 34. The bill, while framed to reach and apply so much of the security as may be necessary to satisfy the plaintiff’s demands, also asks that the city may be ordered to pay the amount from a sum of money in its possession accruing under the contract, which the master reports is claimed by several litigants “in suits, claims and demands arising by reason of alleged liens and otherwise.” The R. L. c. 25, § 57, makes the municipality liable only to a suit for labor performed upon public works. The plaintiff, whose debt is solely for materials, consequently has no cause of action against the city, and, if relief is granted on the first ground, is indifferent as to the second, and, the city also not having contested before the master or before us the plaintiff’s right to have its claim satisfied under the bond, the master’s further finding, that if the amounts involved in the other actions or claims are included, the aggregate exceeds the sum in the possession of the city, is immaterial. The award of the master, while satisfactory to the plaintiff, is not wholly so to the surety company. It contends that the price of the fuses used to explode the dynamite was erroneously allowed. Yet the sticks of dynamite could not be exploded without the use of the fuses, and in the process both were entirely destroyed. If as defined in the case of George H. Sampson Co. v. Commonwealth, 202 Mass. 326, 333, 334, 335, gunpowder so used is “ a material ” within the meaning of our statute for which a mechanic’s lien may be claimed, dynamite, and the fuse used to fire it, come within the definition. The result is, that the plaintiff is entitled to a decree against the defendant the Title Guaranty and Surety Company for the amount found by the master, with interest and costs, the details of which are to be settled in the Superior Court. Ordered accordingly.