2 Mass. App. Ct. 912

January 8, 1975

This is a bill in equity to set aside a foreclosure by the defendant pursuant to the power of sale contained in a mortgage of real estate given by the plaintiffs to the defendant, on the ground that the sale was not properly conducted. The case was referred to a master. The report of the master was confirmed, and thus his findings of fact must stand as they are not "inconsistent, contradictory or plainly wrong." Blanchette v. Blanchette, 362 Mass. 518, 521 (1972). Selectmen of Hatfield v. Garvey, 362 Mass. 821, 825 (1973). The plaintiffs appealed from the final decree dismissing the bill and awarding damages to the defendant under its counterclaim. The plaintiffs rely on Union Mkt. Natl. Bank v. Derderian, 318 Mass. 578, 581-583 (1945), submitting as the sole issue that the mortgagee, as in the Union Mkt. case, violated its duties to the mortgagor in the conduct of the sale so as to "chill" the bidding. The plaintiffs are not aided by the Union Mkt. case, as the factual situation in that case only remotely resembles that of the present case. The master found that the plaintiffs were not present at the sale and that there was neither wrongful conduct nor bad faith on the part of the defendant. There is nothing in the master's report which gives any support to the plaintiffs' contention. See Chartrand v. Newton Trust Co. 296 Mass. 317, 318-322 (1936). The plaintiffs' appeals from interlocutory decrees denying their motion to recommit the master's report and confirming the report are not argued and are therefore deemed waived. Rule 1:13 of the Appeals Court, 1 Mass. App. Ct. 889 (1972). Lawson v. Shine, 1 Mass. App. Ct. 814 (1973).

Interlocutory decrees affirmed.

Final decree affirmed.


2 Mass. App. Ct. 912

January 10, 1975

Defendants appeal from orders allowing plaintiff's

Page 913

"motion for judgment on undisputed facts" and denying such a motion by the defendants, and from the final decree. This suit was brought by the plaintiff under G. L. c. 149, Section 29, to collect money from a general contractor and its bonding company, which money was owed to the plaintiff for blasting supplies furnished to Ribot Corporation. These supplies were used by Ribot Corporation in quarrying stone furnished to defendant Perini Corporation for an airport runway extension project undertaken for the Massachusetts Port Authority at its Logan International Airport in Boston. While the parties to the bond agreed that it would be governed by G. L. c. 149, Section 29, we need not decide whether this was such a project as would come within that section, as we conclude that Ribot Corporation was a material supplier rather than a subcontractor. The protection of a statutory payment bond is limited to those not paid by the general contractor or a subcontractor. Bennett v. Browne, 290 Mass. 84, 85 (1935). No such protection is extended to parties who are owed money by material suppliers who, in turn, have merely sold goods to a contractor for use on a project. Claycraft Co. v. John Bowen Co. 287 Mass. 255, 257 (1934). See American Air Filter Co. v. Innamorati Brothers, 358 Mass. 146, 149 (1970). The case of Holt & Bugbee Co. v. City of Melrose, 311 Mass. 424, 426-427 (1942), relied on by plaintiff, is inapposite since here the material supplied by Ribot Corporation cannot be said to be "specially fabricated . . . so as to be unsuitable for use elsewhere. . . ." G. L. c. 149, Section 29. Defendants also prevail should the statute be considered inapplicable, as it is well established that material suppliers have no rights under a common law payment bond unless the bond expressly states that material suppliers are obligees under the bond, which is not alleged here. Waite Hardware Co. v. Ardini & Pfau, Inc. 339 Mass. 634, 638 (1959). See Morse Bros. Elec. Co. Inc. v. Martin Shore Realty Co. Inc. 344 Mass. 81, 84-85 (1962). The interlocutory orders and the final decree are reversed and a new decree is to be entered dismissing the plaintiff's bill.

So ordered.