International Heating & Air Conditioning Corp. v. Rich Construction Co.

360 N.E.2d 636, 372 Mass. 134
CourtMassachusetts Supreme Judicial Court
DecidedMarch 9, 1977
StatusPublished
Cited by8 cases

This text of 360 N.E.2d 636 (International Heating & Air Conditioning Corp. v. Rich Construction Co.) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
International Heating & Air Conditioning Corp. v. Rich Construction Co., 360 N.E.2d 636, 372 Mass. 134 (Mass. 1977).

Opinion

Braucher, J.

A supplier furnished materials to a subcontractor on a construction project for the city of Boston, and now claims payment under a statutory surety bond securing “payment... for... materials used or employed therein____” G. L. c. 149, § 29, as amended through St. 1964, c. 609, §§ 4, 5. Most of the materials were furnished before February 3,1972. Four rubber vibration eliminators were shipped on February 20, 1973, but were never installed. The supplier filed its sworn statement of claim on April 4, 1973, and the sole question before us is whether that filing was “prior to the expiration of ninety days after the claimant ceases to... furnish... materials... as aforesaid, for which claim is made,” as required by the statute. We agree with the judge of the Superior Court that the filing was timely, and affirm the judgment for the supplier.

The supplier intervened as a plaintiff in a suit brought by another claimant against the general contractor and the surety on the general contractor’s bond. The subcontractor intervened as a defendant. The case was referred to a master, who made findings of fact. His “general findings” were that the subcontractor was indebted to the supplier in the sum of $10,000 plus interest, but that the items shipped in 1973 were never used or employed by the subcontractor in the construction of the project. For that reason, he found for the general contractor and the surety. The judge adopted the master’s subsidiary findings, but ruled that the sworn statement of claim was filed within the statutory ninety-day period from the date when the last materials were furnished and the relationship of debtor-creditor arose. The general contractor and the surety appealed from the resulting judgment against them, and we transferred the case to this court on our own motion.

We summarize the master’s subsidiary findings. The [136]*136subcontractor ordered equipment from the supplier which was shipped in four instalments, the last dated February 3, 1972. One item was a combination system, weighing about 2,500 pounds, to control heating, cooling and ventilation, which was installed by the subcontractor with its own labor force. One of the ancillary pieces of equipment for that system is a set of four rubber pads called vibration eliminators, on which the 2,500 pound equipment rests. The master stated that he made no finding whether the pads were shipped with the system in January, 1972. It is the supplier’s usual practice, when a subcontractor installs its equipment, to test for proper functioning, and in January, 1973, its trouble shooter reported that the vibration, eliminators had not been installed. The supplier sent them to the job site on February 20, 1973, without charge, but there was no evidence that they were ever installed or used or employed in the project. The supplier’s sworn notice of claim was filed within ninety days after the rubber pads were sent.

The requirement of payment bonds on public construction projects is traceable to St. 1878, c. 209. See Burgess, Creditors’ Problems on Public Works Projects in Massachusetts, 40 B.U.L. Rev. 239, 240 (1960). That statute required security, by bond or otherwise, in the construction or repair of public works “upon which hens might attach for labor or materials if they belonged to private persons,” for payment by contractors and subcontractors for labor performed or furnished and for materials used in the construction or repair. The quoted language disappeared when the statute became R. L. c. 6, § 77 (1902), but we continued to find a statutory object to give laborers and materialmen security equivalent to the lien which the law creates on the property of private owners in like cases. See Massachusetts Gas & Elec. Light Supply Co. v. Rugo Constr. Co., 321 Mass. 20, 22-23 (1947), and cases cited. Under the law relating to mechanics’ liens, as it stood before 1915, no hen would attach for materials that did not form a part of the completed structure, and recovery on a statutory payment bond for such materials [137]*137was similarly denied. George H. Sampson Co. v. Commonwealth, 202 Mass. 326, 333 (1909). Thus a claim for gunpowder used in blasting in the construction of an aqueduct was valid, since “in a general sense, the material enters into the completed structure.” Ibid. But a claim for coal burned to furnish power was disallowed. Id. at 337-338.

In 1915 the mechanics’ lien law underwent a radical change. See Manchester v. Popkin, 237 Mass. 434, 438 (1921). Since 1915 the mechanics’ lien statutes have referred to material furnished “by virtue of said contract” or furnished “under a contract with a contractor or with any sub-contractor of said contractor,” rather than to material “used” in the project. G. L. c. 254, §§ 2, 3, originally enacted as St. 1915, c. 292, §§ 2, 3, and amended by St. 1916, c. 306, §§ 1, 2. By St. 1922, c. 416, the words “or employed” were inserted after the word “used” in the statute requiring payment bonds on public construction projects, and we read the amendment as broadening the coverage to include materials “consumed or made so worthless as to lose their identity.” American Casting Co. v. Commonwealth, 274 Mass. 1, 6 (1931). Otherwise, however, we continued to insist that the materials be physically incorporated in the construction work. Walsh Holyoke Steam Boiler Works, Inc. v. McCue, 289 Mass. 291, 294 (1935).

By similar analogy to superseded provisions of the mechanics’ lien law, we have insisted that the statutory sworn statement of claim under a payment bond must be filed after, not before, the materialman’s performance is complete. International Business Machs. Corp. v. Quinn Bros. Elec. Co., 321 Mass. 16, 19 (1947). See Lock Joint Pipe Co. v. Commonwealth, 331 Mass. 346, 351-352 (1954), and cases cited. Contrast G. L. c. 254, § 8 (mechanics’ lien statement to be filed within thirty days after the date on which the contract “is to be performed”). Consistently with that rule, we have upheld a filing within the statutory period after belated corrective work was completed. Ross v. Planet Ins. Co., 361 Mass. 852, 853 (1972), and cases cited. Cf. Peerless Unit Ventilation Co. v. D’Amore [138]*138Constr. Co., 283 Mass. 121, 124-125 (1933) (claim denied for work “under a new and independent arrangement” or for “gratuitous performance of work not contracted for”). The present record does not permit a conclusion that the rubber pads were furnished independently of the contract. The master found that they were required in order to have a proper installation of the system, and on that finding we think the judge correctly ruled that the contract was not completed until they were provided.

The defendants’ principal argument rests on a statement in Lock Joint Pipe Co. v. Commonwealth, 331 Mass. 346, 350 (1954): “The import of our cases is that the sworn statement of claim must be filed within” the statutory period “after the claimant furnishes the last materials which become part of the installation.” That statement was not necessary to the decision in the Lock Joint Pipe case, but it was fully supported by the decision of a divided court in Kennebec Framing Co. v. Pickering, 142 Mass. 80, 82 (1886), a decision under our former mechanics’ lien law.

We formerly took the view that a mechanics’ lien “is not a common-law right, but a creature of the statute.

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360 N.E.2d 636, 372 Mass. 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-heating-air-conditioning-corp-v-rich-construction-co-mass-1977.