This bill was originally brought to impose a constructive trust upon, or to rescind the sale of, shares of Hancock Raceway, Inc. stock. Commonwealth v. Carson, 349 Mass. 430, contains the factual background underlying the bringing of this suit. The principal issue of the case as it reached us was the ownership of a bond purchased by one of the defendants with money allegedly obtained from the sale of the aforementioned shares. The trial judge in his report of the evidence and voluntary findings did not determine who owned the bond, which was not in issue before him on the pleadings, and it is not possible for us on the record as it has reached us to make a determination on this point. Since this is the principal issue in the case the decree must be reversed and the case remanded to the Superior Court for determination of this issue with leave to the parties to amend their pleadings. It may be desirable for the clerk of the Suffolk Superior Court for Civil Business, who has custody of the bond, to file an interpleader, and, subject to the discretion of the court, it may also be desirable that a second suit, Suffolk Superior Court No. 85,265 equity, brought by the plaintiff against the defendant Furcolo to recover the bond, be tried with this case.

So ordered.

The final decree declared (1) that the plaintiff (the contractor) was not entitled to recover, either on the contract or in quantum meruit, further amounts from the town on account of substantial work under a unit price contract concerning the Provincetown airport; (2) that the contractor was not entitled to any recovery, at least in this proceeding, against the other defendant Commonwealth Corporation (Comcorp), the town's engineer; and (3) that the town was not entitled to liquidated damages from the contractor for delay. It would serve no useful purpose to state the unnecessarily repetitive reported evidence. In our opinion the trial judge erroneously concluded that the contractor was barred from relief (a) because it permitted Comcorp to perform engineering services for it, and (b) because it received permission from Comcorp to vary the thickness of the top layer of the bituminous surface of the taxiway and apron. We interpret the contract as requiring Comcorp to measure quantities by cross sections and a permitting the contractor to rely on, and have the benefit of, such measurements. The engineering services for the contractor did not involve conduct by it which should

Page 746

bar relief by application of the doctrine of "clean hands." See Walsh v. Atlantic Research Associates, Inc. 321 Mass. 57, 65-67; Fisher v. Fisher, 349 Mass. 675, 677. In the circumstances the deviation from the precise specifications of the bituminous surface did not constitute a material breach of contract or a failure in good faith to attempt to perform the contract. Since the judge's erroneous conclusions on these points so completely affected his ultimate conclusion, the case should be remanded to the Superior Court for reconsideration (upon the present record and any further evidence which may be received) of the trial judge's findings and conclusions on other issues, unaffected by the underlying erroneous conclusions. The trial judge should also reconsider his ruling that recovery could not be afforded to the contractor against Comcorp because it was not a party to the unit price contract. See Wilson v. Jennings, 344 Mass. 608, 621.

Final decree reversed.