Home ETHEL EPSTEIN vs. RUBIN EPSTEIN.

351 Mass. 698

June 15, 1966

The judge in the Superior Court rightly found for the plaintiff in this action on the defendant's undertaking, in a letter of October 16, 1962, to pay over to the plaintiff $8,488.12 "[i]n the event that a final decree is entered in the pending . . . [equity suit] of Ethel Epstein vs. Carl D. Epstein . . . [her husband] establishing your sole ownership of said sum . . . and any and all appeals therefrom are finally resolved in your favor." The bill in equity in paragraph 11 had alleged that Carl had placed funds, "the sole property" of the plaintiff, with the defendant for investment, and prayed that the property set forth in paragraph 11 be ordered turned over to the plaintiff as her "sole property." The final decree had decreed that Carl was indebted to Ethel in the amount of $8,488.12 "being the present balance of the funds set forth in paragraph 11 of the Bill of Complaint and presently in the custody of Rubin Epstein" and had ordered that Carl pay that balance to Ethel. The judge in this action rightly ruled that the decree, read with paragraph 11, had established that the fund was Ethel's "sole property." There was no error in the disposition of requests for rulings. The declaration was extended but not to the point that there was error in overruling the demurrer or in denying a motion to strike. Letters included in the declaration showed the plaintiff's demands before and after the dismissal of Carl's appeals from the equity decree. Other letters received in evidence were written in 1957, 1961 and 1962; nothing therein appears prejudicial to the defendant, or to affect the unambiguous language of the defendant's undertaking of October 16, 1962, or to have been given weight in its construction.

Exceptions overruled.

Home JOSEPH YANOFSKY & another vs. MARINUCCI BROS. & CO. INC. & others.

351 Mass. 698

June 15, 1966

This is a petition under G. L. c. 149, Section 29, by a subcontractor against a general contractor as principal and two bonding companies as sureties. The subcontractor and the general contractor stipulated

Page 699

that the unpaid principal balance claimed by the subcontractor and interest thereon from the date of the filing of the sworn statement of claim is due. On the subcontractor's motion for summary judgment under G. L. c. 231, Section 59, a final decree was entered awarding the subcontractor the unpaid principal balance, interest from the date of filing of the sworn statement, and also interest on six invoices as provided in the subcontract. The general contractor and one of the sureties appealed, contending that the interest provided for in the subcontract for the six invoices not paid should not have been allowed. There was no error. The subcontract was valid and provided for payment of interest on each invoice unpaid thirty days after its date. The record indicates that the subcontractor substantially performed its obligations under the contract. It is therefore entitled to interest from the dates on which interest began to run under the terms of the subcontract. E. Van Noorden Co. v. Hartford Roofing & Sheet Metal Co. Inc. 336 Mass. 676 , 678. No demand for interest was necessary. Charles T. Main, Inc. v. Massachusetts Turnpike Authy. 347 Mass. 154 , 168, and cases cited. The surety was not a party to the stipulation. However, the decree against the surety for the principal debt and interest was also correct. "The liability of the surety was to make good any default of the principal in regard to payments, within the amount stated as the penal sum of the bond." George H. Sampson Co. v. Commonwealth, 202 Mass. 326 , 339.

Final decree affirmed with costs of appeal.