For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 106 N.E.-10

From this decree appeals were taken by the surety company and by the city of Boston.

[1] 1. We are of opinion that the bond given by the surety company was not given in compliance with St. 1909, c. 514, § 23, and that the surety company cannot be made liable to the plaintiff and the other materialmen.

should "faithfully furnish and do everything" | it declared that the city had no right to rerequired of him by the contract between coup its damages in this suit or in the crosshim and the city. The plaintiffs claim that bill, and it directed the surety company to both the money retained and the bond given pay to the plaintiff its costs of suit. were obtained by the officers of the city in compliance with St. 1909, c. 514, § 23, the terms of which are set forth below in a note.1 All other persons who had performed labor and furnished materials in the construction of the bathhouse were made parties defendant to the bill. In its answer the city alleged "that since the acceptance of said building as completed, it has appeared that there were certain latent defects in the construction of said building due to the failure of Mack and Moore to construct said building in accordance with the plans and specifications; that as a result thereof the defendant has suffered great damage and claims the right to recoup therefor out of the funds in its hands as heretofore alleged." The case was sent to a master under a rule directing him "to hear the parties and their evidence, to find the facts and report his findings to the court, together with such facts and questions of law as either party may request."

In spite of the terms of this order of reference (limiting the master to finding the facts which were put in issue by the pleadings), the master failed to pass upon the issue raised by the allegation of the city that it had been damaged by a failure on the part of Mack to perform his contract. We assume that the reason for this was a ruling which the master undertook to make (although he had no authority to make it under the order of reference in this case; see Clark v. Seagraves, 186 Mass. 430, 71 N. E. 813), to the effect that the city of Boston had no right in this suit to recoup the damages suffered by it in the premises. On the coming in of the master's report the city filed a cross-bill based upon these same damages, and on its motion the cause was recommitted to the master to find the damages suffered by the city. In a supplementary report the master found that the damages suffered by the city by reason of the failure of Mack to comply with the terms of his contract amounted to $4,750. A final decree was entered on the master's report, establishing the sums (amounting to $17,410.76) due from Mack to the several persons who had furnished material or performed labor in the construction of the bathhouse, and directing the city forthwith to pay over to these debtors of Mack their proportionate share of the $13,351.98 retained by the city; it also directed the surety company to pay to Mack's creditors the balance of the several sums due them, "Officers or agents who contract in behalf of any county, city or town for the construction or repair of public buildings or other public works shall obtain sufficient security, by bond or otherwise, for payment by the contractor and subcontractors for labor performed or furnished and for materials used in such construction or repair; but in order to obtain the benefit of such security the claimant shall file with such officers or agents a sworn statement of his claim within sixty days after the com

The main argument on which the plaintiff bases his contention that the bond was given in compliance with the statute is that by the terms of the contract between the city and Mack, Mack agreed, in case it was ascertained on the final settlement that he was indebted to the city, to pay to the city the balance found to be due within one month after the determination of the amount of it. But the terms of the bond are that Mack should "faithfully furnish and do everything therein required of" him. This would seem to mean "faithfully furnish material and do the work required of him by the contract." This interpretation of the condition of the bond is reinforced by the terms of Mack's proposal to the city, which is a part of the contract between him and the city. It is there stated that the city is to pay Mack $64,650, as full payment for doing and completing the work, "including everything furnished or done and every injury or loss sustained by the contractor in carrying on the work." The terms and conditions of the bond correspond to the terms of the proposal which do not include payment of money by Mack to the city.

The provision made in the contract between Mack and the city for the retention of a portion of the monthly amount then apparently due to Mack, provides in terms that such sums should be deducted and retained (inter alia) "to settle the claims for materials or labor furnished for carrying on the contract notice of which claims signed and sworn to by the claimants severally, shall have been filed" in the office of the defendant city or with its officers as specified in the contract. It is plain that this provision was made to comply with St. 1909, c. 514, § 23. In this respect the case is like Nash v. Commonwealth, 174 Mass. 335, 54 N. E. 865; Burr v. Massachuetts School for the Feeble Minded, 197 Mass. 357, 83 N. E. 883. The statute provides that sufficient security for those furnishing material or performing labor shall be obtained either "by bond or otherwise," not by both. In the case at bar the requirement of St. 1909, c. 514, § 23, having been complied with "otherwise" than by bond, it cannot be held that the bond was given to comply with the statute.

It follows that so much of the decree as holds the defendant surety company liable and directs it to pay the costs to the plain

bids the city's recouping the damages suffered by it, (2) so far as it fixes the amount which the city is to pay over to the plaintiff and to the other materialmen, and (3) so far as it holds the defendant surety company liable in this suit and directs the surety company to pay to the plaintiff its costs.

The decree appealed from must be modified by providing that the city shall forthwith pay over to the plaintiff and to the other materialmen their proportion of $8,601.98, and by directing that the bill should be dismissed as against the defendant surety company and that the plaintiff should pay to the surety company its costs. So modified, it is affirmed. So ordered.

Where plaintiff, a broker, knowing of an owner of land desiring to lease it, agreed to give defendants this information if they would handle the matter for one-half the commission, the fact, if true, that damages could not have been recovered had defendants refused to make any attempt to negotiate a lease did not render the agreement too indefinite for enforcement, where defendants did negotiate a lease for which they had earned commissions.

[Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 59-61; Dec. Dig. § 73.*] 2. FRAUDS, STATUTE OF (§ 52*)-AGREEMENTS NOT TO BE PERFORMED WITHIN ONE YEAR.

Suit by John P. Collins against Seth P. Snow and others. Decree for plaintiff, and defendants appeal. Affirmed conditionally.

Michael J. Sughrue, of Boston, and Jas. J. McCarthy, of Worcester, for appellants. Chas. F. Smith, of Boston, for appellee.

LORING, J. The plaintiff, who was 8 real estate broker, testified that he had a conversation with one of the defendant firm (who for convenience will be spoken of as the defendants), also brokers in real estate, in which (to quote his own words) he said:

"I told him that I had a valuable proposition that could be worked, and if he would agree to go to the front and do the work and give me one-half of the commission I would give him the information that I had so that he could go ahead. Mr. Snow said that he would agree to that and do the work."

The plaintiff further testified that he then disclosed to Snow that the owners of an estate then subject to an unexpired lease wanted to let it for 75 years on a ground rent of $70,000 a year. The defendants thereupon applied to the owners to be and were employed by them as their brokers, and succeeded in letting the estate, whereby they became entitled to a commission of $25,000. The defendants denied the contract testified to by the plaintiff, and this bill in equity was brought to reach and apply certain property of theirs in payment of the debt. The judge who tried the case believed the plaintiff and entered a decree in his favor. From this decree the defendants took an appeal; and the case is here on the evidence which was taken by a commissioner.

Plaintiff, a broker, knowing of an owner of land who desired to lease it for a long term, asked defendant to handle the matter for onehalf of the commissions, which defendant agreed to do. Defendant procured an option on the land, and thereafter negotiated a lease, whereby [1] The first contention made by the dehe became entitled to a commission of $25,000, fendants is that the arrangement testified payable in installments extending over several to by the plaintiff is too indefinite to amount years. Held, that the conversation between to a contract. In support of that contention plaintiff and defendant constituted a complete contract, which could have been performed with- they ask what the damages would have been in one year, and which, therefore, was not void if the defendants had refused to make any under the statute of frauds, though the ar- attempt to negotiate a lease. The fact that rangement made by defendant under the con- there could be no recovery (if there could be tract could not have been completed within one none) in that event is not of consequence. year. The promise sued on was to pay the plaintiff one-half of the commission earned. It is like a promise by a manufacturer to sell to the plaintiff all goods manufactured by him during a specified time.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 79; Dec. Dig. § 52.*j 3. PLEADING (§ 247*)-AMENDMENT-MATTERS SUBSEQUENT TO FILING OF BILL. In a suit by one real estate broker against another to reach and apply property of the defendant in payment of plaintiff's share of certain commissions payable in installments, plaintiff's share of an installment falling due after the filing of the bill could be recovered by an amendment of the bill, since while at law relief cannot be given founded on facts happening subsequent to the date of the writ, in equity rights accruing after the filing of the bill, growing out of the matters on which the bill is founded, might formerly be made the subject of a supplemental bill, and now under Equity Rule 25 may be pleaded by way of amendment.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 684, 685; Dec. Dig. § 247.*]

Appeal from Superior Court, Suffolk County; Edward P. Pierce, Judge.

[2] The second contention is that when the arrangement testified to by the plaintiff and set forth above was made, it was expected that more definite terms would be agreed upon later on; that when the subsequent terms were agreed upon and the arrangement became a contract it was a contract which could not be performed within a year and so not enforceable by reason of the statute of frauds. Passing by the fact that the statute of frauds has not been pleaded the facts relied upon by the defendants in making this contention are these: When the owners employed the defendants they gave them a writ

ten option in which it was stipulated that | The fact that the arrangement made under the commission to be paid in case a lease this contract which could have been comwas made would be $24,000. The commission pleted within a year was an arrangement was to be $25,000, and the owners had for- which could not be completed within a year borne to require a deposit of $1000 on giving is not material. The test to be applied is the option. The $1000 thus paid to the de- whether the contract when made was one fendants and repaid by them to the owners which could not be completed within the made the commission $25,000. In the written year. option it was stipulated that the $24,000 was to be paid as follows: $3000 on September 1, 1908; $3000 on October 1, 1908; $3000 on November 1, 1908; and the remaining $15,000 to be paid $5000 a year during each of the three years beginning August 1, 1909, August 1, 1910, and August 1, 1911. The written option was given on December 12, 1902. The lease negotiated by the defendants was dated November 15, 1904. If the arrangement between the defendants and the plaintiff became a contract either when the option was given or when the lease was negotiated, the contract was within the statute of frauds.

[3] The defendant's last contention is that under the doctrine of Daniels v. Newton, 114 Mass. 530, 19 Am. Dec. 384, the decree was wrong in enforcing the plaintiff's half of the installments which fell due after the date of the filing of the bill, to wit, September 28, 1908. But Daniels v. Newton was an action at law. In an action at law relief cannot be given founded on facts happening after the date of the writ. In equity the rule is otherwise. In equity, rights accruing to the plaintiff after the filing of the bill which grow out of the matters on which the bill is founded may be made the subject of a supplemental bill. Saunders v. Frost, 5 Pick. 275, 276; Jaques v. Hall, 3 Gray, 194. See, also, in this connection Bauer v. International Waste Co., 201 Mass. 197, 87 N. E. 637. Indeed unless the original bill is dismissed that is the only way in which they can be enforced. Saunders v. Frost, 5 Pick. 275. By force of Equity Rule 25 all facts which at common law were the subject of a supplemental bill now can be pleaded by way of an amendment to the original bill.

In contending that the conversation testified to by the plaintiff and set forth above was a preliminary arrangement only and not a definite contract, the defendants rely on what was drawn out by their counsel on cross-examination of the plaintiff. On his cross-examination the plaintiff admitted that he expected a special agreement at a later period, since it was a large deal. The defendant's counsel asked the plaintiff whether he did not expect "that more definite and fixed terms would be arranged later." The defendants have assumed that the plaintiff. agreed to this. But what happened was that he said, "Yes, but-" and the defendants' counsel cut in and stopped him from completing his answer. And lastly, that the plaintiff assented when asked whether the amount was not changed from $52,000 to $25,000 and the time of payment postponed from 1904 to 1908, and that he understood | quent installments of the commission have and assented to that at the time.

We are of opinion that on this evidence a completed contract was made when the conversation between the plaintiff and defendant set forth above took place. That contract could have been completed within a year.

In the case at bar no such amendment has been made. It appears however that the subsequent installments were paid by being allowed by the lessor in account with the lessee to whom the sums due as commissions were assigned by the Snows. If within sixty days from the date of the rescript in this case the bill is amended by alleging that the subse

been paid, the decree is affirmed with costs; otherwise it is to be modified by limiting the recovery to one-half the commission due when the bill was filed, and so modified is affirmed. It is

So ordered.