Public Works Supply Co. v. C & O Enterprises, Inc.

2004 Mass. App. Div. 170, 2004 Mass. App. Div. LEXIS 58

• Court: Massachusetts District Court, Appellate Division
• Decided: October 21, 2004
• Status: Published

Opinion

Merrick, P.J.

The plaintiff, Public Works Supply Co., Inc. (“PWS”), commenced this action on August 1, 2003 to recover $23,615.23 it alleged was owed for the materials it supplied to defendant C & O Enterprises, Inc., the contractor on a public works project. Counts I, II and III of the complaint sought that amount on claims against, respectively, the contractor for goods sold and delivered; defendant George Clements on his guaranty of the contractor’s payment; and defendant Atlantic Mutual Insurance Company (“Atlantic”) on a bond pursuant to G.L.c. 149, §29. A trial court judge allowed Atlantic’s motion to dismiss on the ground that the bond statute requires any action to enforce the bond to be brought as a petition in equity in the Superior Court. PWS appealed.

The legal issue presented on this appeal is precisely the same as that decided by us today in Public Works Supply Co., Inc. v. Kevton Corp., ante. For the reasons stated there, the dismissal of the action as to Atlantic is vacated.

So ordered.