
    Cowls Building Supply, Inc. vs. Thomas R. Blake and others
    
    Western District
    February 3, 1983
    Present: McGuane, Greenberg & Walsh, JJ.
    Richard M. Howland for the plaintiff.
    Robert H. Wilson for the defendant.
    
      
       Julia A. Blake, Jeffrey Flower, John Flower, and Wildflower, Inc.
    
   McGuane J.

This matter is here on anarrow issue. The Trial Court allowed a Motion .to Dismiss as to the Defendant owners. The Plaintiff appealed this dismissal or allowance of Motion for Summary Judgment in favor of the owner - Defendants.

Briefly the Defendants, Thomas R. Blake and Julia A. Blake entered into a contract with Wildflower, Incorporated for the construction of a home. The Plaintiff in this case supplied lumber and other materials to the builder, Wildflower, Inc.

The Plaintiff has alleged that the Defendant owners owe for goods sold and delivered by Plaintiff and a count on an account annexed and for “unjust enrichment”.

The Plaintiffs claim against the owner-Defendants would appear to rest on the factual issue of whether or notthe Defendant owners have paid Wildflower, Inc. for the lumber and materials furnished by the Plaintiff. Resolution of this issue of fact would then determine the existence of a claim against the owner Defendants.

General Laws c. 254, § 26 provides: “This Chapter shall not prevent a person entitled to a lien under it from maintaining a civil action as if he had no lien”.

While the Plaintiff perhaps wishes it had filed under the above chapter in time, failure to do so does not prevent his bringing an action.

Since there is precedent for third party beneficiaries’ suits, Choate, Hall & Stewart v. S C A Services, Inc., Mass. Adv. Sheets (1979) at 1877, and since we do find that there exists a genuine issue of fact to be resolved. We find prejudicial error and the matter is remanded to the Northampton Division for trial on this claim.  