T. Shea, Inc. v. City of Springfield

Braley, J.

The defendant city on November 2, 1916, entered into a contract in writing with one Arthur W. Falvey for the construction of a building known as the “Hooker School.” It was executed in behalf of the city by the committee on city property acting under a vote of the city council, which authorized the erection and equipment of the building at a cost not exceeding $242,000. The committee were officers or agents of the city and in compliance with St. 1909, c. 514, § 23, now G. L. c. 149, § 29, the city received a bond in the penal sum of $150,000, executed by Falvey as principal and the defendant, the International Fidelity Insurance Company as surety. The bond by the express words of the statute was security for payment by the contractor and subcontractors for labor performed or furnished and for materials used. E. I. Dupont DeNemours Powder Co. v. Culgin-Pace Contracting Co. 206 Mass. 585 . Powers Regulator Co. v. Taylor, 225 Mass. 292 . The master, to whose report no exceptions were taken, finds that Falvey abandoned the contract February 26, 1917, when the building was partially completed, and was adjudicated a bankrupt February 28, 1917. The plaintiff prior to the default had furnished materials which were actually used under *574 the contract and for which Falvey owed him $2,804.64. But, notwithstanding the validity of the debt, the statute also provides that to obtain the benefit of the bond, the plaintiff must file with the officers or agents of the city who contracted in its behalf a sworn statement of his claim within sixty days after the completion of the work. The statute which creates the remedy makes the notice a condition precedent to recovery, and, the plaintiff never having filed with the city property committee the statement required, cannot maintain the bill. It is immaterial that he filed such statement with the city clerk, of which the members of the committee had knowledge, or that they had informally discussed his claim.

We have considered the only question argued, and the decree dismissing the bill must be affirmed. Tower v. Miller, 211 Mass. 113 . Powers Regulator Co. v. Taylor, 225 Mass. 292, 297, 298 .

Ordered accordingly.