Bennett v. Browne

194 N.E. 659, 290 Mass. 84, 1935 Mass. LEXIS 1020

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1935
• Status: Published

Opinion

Lummtjs, J.

This is a suit in equity to get the benefit of security for the payment by one Browne, a subcontractor, doing business as William H. Browne and Company, of $3,822.56 for materials furnished by the plaintiff firm in the construction of a schoolhouse for the city of Boston. The security was obtained under G. L. (Ter. Ed.) c. 149, § 29, in the form of a bond, running to the city, with the defendant Central Surety & Insurance Corporation as obligor. Claims were established in favor of two intervening petitioners, but the original bill of the plaintiffs was dismissed. They appealed.

On May 7, 1930, Browne had made an assignment of his assets, for the benefit of his creditors, to three trustees, one of whom was a member of the plaintiff firm. The assignment provided that the trustees were to be known as “William H. Browne & Co., Trustees.” It is expressly found that the trustees were the purchasers of, and the debtors for, the materials for which the plaintiffs seek payment. B. B. Noyes Co. v. Ballard, 253 Mass. 340. That finding is consistent with the further finding that invoices for the materials were made out in the name of William H. Browne Company. But the subcontractor named in the contract with the contractor of November 19, 1930, was William H. Browne Company, and that meant Browne as an individual, as the bill and the argument for the plaintiffs admit.

Since the debt for which the plaintiffs seek payment was not owed them by a contractor or subcontractor, they are not entitled to the benefit of the statutory security. Claycraft Co. v. John Bowen Co. 287 Mass. 255. The exceptions to the master’s report show no error, but require no discussion. Most of them are immaterial to the decisive point.

Decree affirmed with costs.