New England Structural Co. v. James Russell Boiler Works Co.

B roley, J. It is unnecessary to state at length the allegations of the bill and the cross bill, as the stipulation of the parties entered [277] into and filed before the cases were tried on the merits clearly designates the questions on which they are at issue. The plaintiff furnished and delivered structural steel for a boiler shop to be built on the land of the defendant boiler works company, the owner, substantially in accordance witn specifications prepared by a firm of engineers, who are referred to in the contract between the plaintiff and Apted and McDuffee, defendants in the original bill. We shall, for convenience, refer to the boiler works company as the company and to Apted and McDuffee as the builders. It is to be assumed on the record that the boiler shop has been completed in accordance with the contract, and that the sum of $10,553.86 in the possession of the company is equivalent to the unpaid amount due to the plaintiff. It is agreed that this amount without interest is payable to either the plaintiff or to the trustee in bankruptcy of the builders, the plaintiff in the cross bill, and that payment to either of them under a decree of the court is to be a full discharge and satisfaction of the company’s liability. The trial judge having decreed that the trustee was entitled to the money, the case is before us on the plaintiff’s appeal. The grounds upon which the argument for reversal rests are that the company is bound by the terms of the contract made with the plaintiff by the builders to pay to it the amount in dispute because the builders acted as the agents of the company in making the contract under which the steel was furnished, or that to avoid circuity of action the company should be ordered to pay the amount directly to the plaintiff, because under a true construction of the contract between the company and the builders the company engaged to pay for the steel, and, if the amount were paid to the trustee in bankruptcy, he would hold the money not for disbursement among the bankrupt’s general creditors, but upon a trust solely for the plaintiff’s benefit. The contract between the plaintiff and the builders dated December 5,1916, and the contract of the company with the builders dated December 14, 1916, copies of which are annexed to the bill, are in writing. While neither contract contains language constituting the builders agents for the company, undoubtedly their agency could be shown by paroi evidence and, if proved, the company could be reached as a principal. The plaintiff could pursue its remedy concurrently against the agents and the principal, but could have [278] but one satisfaction of its demands. Elwell v. State Mutual Life Assurance Co. 230 Mass. 248. But the question of agency was an issue of fact upon the evidence introduced at the trial, and, the judge having stated. that he could not find that the builders acted as agents for the company, that finding, not appearing to be wrong, is conclusive. The plaintiff’s contract with the builders, which preceded the contract with the company,' provided in article 8, that the plaintiff was to receive $10,900 “subject to additions and deductions as hereinbefore provided and that such sum shall be paid” by the builders to the plaintiff in current funds as follows: “Eighty-five per cent ... of the value of labor and material delivered' each and every month to be paid for on or before the twelfth .■• . of the month next -succeeding.” And no inference can be drawn from any language found in this contract that the parties intended that the company and not the builders should be the principal. It follows that the steel was not furnished upon any promise made to the plaintiff by the company. ( By the material terms of the contract between the builders and the company the sum to be paid to the builders for work and materials included the cost of the material, labor and insurance plus eight per cent, “with the express understanding, however, that the cost including said eight p'efc cent shall not exceed thirty-five thousand dollars,” and that such sum shall be paid by the company to the builders in current funds as follows: The builders shall furnish to the company on Thursday of each week a payroll for all labor for the week ending Wednesday evening, which shall thereupon be paid by the company on or before twelve o’clock noon on Friday of the same week; and the builders shall also furnish from time to time to the company a statement of all bills for material, insurance and equipment if hired, as the same are rendered, which bills shall be paid by the company within thirty days from the date of said bills, unless said bills provide for a special discount for payment within a shorter time, in which case the company shall pay within said shorter timé. It is further stipulated that, if at any time there shall be evidence of any lien or claim for which if established the company might become liable, and which is chargeable to the builders, the company shall have the right to retain out of any payment due or [279] thereafter to become due an amount sufficient completely to indemnify it against such lien or claim. ' The builders also are not to place any order or let “any sub-contracts in connection with the work in excess of $500.00 without first obtaining the approval of the” company. It is plain that all these provisions are designed to protect the company against liens for labor or materials, and no language is found constituting the builders the company’s agent in making the necessary contracts for labor and materials which the builders as principals have bound themselves to provide, but which were not to exceed, including their profit on a percentage basis, the entire price for which they agreed to build and complete the shop. We are unable to perceive any sound reason for reading into an unambiguous building contract words which the parties did not choose to insert, or to adopt a construction which ignores or overrides the primary provision that the builders, in consideration of the agreements therein made by the company, agree with the company, that the builders “shall and will provide all the materials and perform all the work for the construction” of a boiler manufacturing plant on land of the company, as shown on the drawings and described in the specifications prepared by the engineers which “become hereby a part of this contract.” While the plaintiff’s treasurer testified that the steel was charged on their books of account to the company, it does not appear that any bill was ever rendered or that while the work was in progress-a partial payment was made by the company to the plaintiff. And neither this agreement nor the record contains anything to show that the company was to hold and pay to the plaintiff a specific sum. But, even if the intention of the parties was, as the plaintiff contends, that, upon a statement by the builders of the amount, the company as the'principal engaged to pay all bills for material furnished by subordinate contractors, the promise was not made to the plaintiff but to the builders. Whatever may have been decided to the contrary in Arnold v. Lyman, 17 Mass. 400, Hall v. Marston, 17 Mass. 575, Cabot v. Haskins, 3 Pick. 83, and Carnegie v. Morrison, 2 Met. 381, cited and relied on by the plaintiff, it is settled by Exchange Bank of St. Louis v. Rice, 107 Mass. 37, that the person for whose benefit a promise is made to another person [280] from whom alone the consideration moves, cannot maintain an action against the promissor, “unless either the latter has also made an express promise to the plaintiff or the promisee acted as the plaintiff’s agent merely.” The plaintiff having failed to bring itself within the exception to the general rule, fully pointed out in Mellen v. Whipple, 1 Gray, 317, that, an action may be maintained where the defendant “has in his hands money which, in equity and good conscience, belongs to the plaintiff,” as where one person receives from another money or property as a fund from which certain creditors of the depositor are to be paid, and promises, "either expressly, or by implication from his acceptance of the money or property without objection to the terms on which it was delivered to him, to pay such creditors,” the decree should be affirmed. Ordered accordingly.