Marsh v. Rothey

8 Citing cases

  1. Preussag v. March-Westin

    221 W. Va. 472 (W. Va. 2007)   Cited 4 times
    Distinguishing different entities with the terms "prime contractor," "general contractor," "subcontractor," and "materialman"

    Given the facts of this case, both parties agree that whether Titan is a subcontractor or a materialman presents an unsettled question of West Virginia law appropriate for certification. The parties also agree that Marsh v. Rothey, [ 117 W. Va. 94] 183 S.E. 914 (1936), is the leading case construing W. Va.Code, 38-2-39. They also agree, however, that the facts before the Marsh court were distinguishable from those now before the court and that the Marsh holding is not dispositive of the issue at bar.

  2. Webb v. Blue Lightning Co.

    116 So. 2d 753 (Miss. 1960)   Cited 8 times
    In Webb v. Blue Lightning Service Company, 1960, 237 Miss. 862, 116 So.2d 753, cited by appellant, Webb was the general contractor for paving a public road and had executed a performance bond with a surety.

    I. The fuel was supplied to a materialman of the contractor. Plaintiff is a materialman of a materialman and as such is beyond the coverage of the contract bond. Baker v. Yokima Valley Canal Co. (Wash.), 173 P. 342; Clifford F. MacEvoy Co. v. United States for use of Calvin Thomkins Co., 322 U.S. 102, 88 L.Ed. 1163; Concrete Steel Co. v. Bowles Co. (Neb.), 163 N.W. 322; Forsberg v. Koss Constr. Co. (Iowa), 252 N.W. 258; Foster Lumber Co. v. Sigma Chi (Ind.), 97 N.E. 800; Hendrix v. Foote, 205 Miss. 1, 38 So.2d 111; Huddleston v. Nisler (Texas), 72 S.W.2d 959; Indiana Limestone Co. v. Cuthbert (Kan.), 267 P. 983; J. Watts Kearny Sons v. Perry (La.), 141 So. 13; Marsh v. Rothey (W. Va.), 183 S.E. 914; Neary v. Puget Sound Engineering Co. (Wash.), 194 P. 830; Northwest Roads Co. v. Clyde Equipment Co., 78 F.2d 771; Sheffield v. Reece, 201 Miss. 133, 28 So. 23; Smith v. Chickasaw County, 156 Miss. 171, 125 So. 96; Thornhill v. Ford, 213 Miss. 49, 56 So.2d 23; Tipton Realty Abstract Co. v. Kokomo Stone Co. (Ind.), 110 N.E. 688. II. Plaintiff failed to meet the burden of proof and show that the material (fuel, etc.)

  3. Kinney Electrical Mfg. Co. v. Modern Electric Co.

    149 N.W.2d 69 (N.D. 1967)   Cited 3 times

    In the absence of a specific statutory definition, other courts have adopted a similar meaning of the term "subcontractor." Marsh v. Rothey, 117 W. Va. 94, 183 S.E. 914; Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 155 A.2d 691; Miller v. Cornell-Young Co., 171 S.C. 228, 171 S.E. 790; Fosburgh Co. v. Hampden County, 204 Mass. 494, 90 N.E. 851; Gaydos v. Packanack Woods Development Co., 64 N.J. Super. 395, 166 A.2d 181; Johnson v. O-Kay Turkeys, Inc. (Okla.), 392 P.2d 741, 743. In the case before us, as already pointed out, the statute does not define the term "subcontractor."

  4. O'Neal Steel Company v. Leon C. Miles, Inc.

    187 So. 2d 19 (Miss. 1966)   Cited 10 times
    Addressing contracts, contract sales, and contract termination and providing that upon termination, “all obligations which are still executory on both sides are discharged but any right based on prior breach or performance survives”

    17 C.J.S. Contracts § 11, p. 333, contains this statement: "`Subcontractor' has a well defined meaning in building contracts, and as used in its technical sense it means one who takes from the principal contractor a specific part of the work, and does not include laborers or materialmen." In that case we cited Marsh v. Rothey, 117 W. Va. 94, 183 S.E. 914 (1936), and stated: The West Virginia Court defined a subcontractor and a materialman in this language: "A subcontractor, ordinarily, is one to whom the principal contractor sublets a portion or all of the contract itself.

  5. Louis A. Gily & Sons v. Dependents of Shankle

    149 So. 2d 480 (Miss. 1963)   Cited 5 times
    In Louis A. Gily Sons v. Shankle's Dependents, 246 Miss. 384, 149 So.2d 480 (1963), another dragline case, the Court, again looking at who had the right of control, held that O'Neal was not an independent contractor but rather an employee of Gily, stating, "The traditional test of the employer-employee relation is the right of the employer to control the details of the work."

    Cox, Dunn Clark, Jackson, for appellants. I.J.L. O'Neal was not a subcontractor of appellant Gily and Son. E.L. Bruce Co. v. Hampton, 225 Miss. 242, 83 So.2d 101; Indiana Limestone Co. v. Cuthbert, 126 Kan. 262, 267 P. 983; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; March v. Rothey, 117 W. Va. 94, 183 S.E. 914; Mississippi Employment Security Comm. v. Heidelberg Hotel Co., 211 Miss. 104, 51 So.2d 47; Rogers v. Phillips Lumber Co., 241 Miss. 590, 130 So.2d 856; Wade v. Traxler Gravel Co., 232 Miss. 592, 100 So.2d 103; Webb v. Blue Lightning Service Co., 237 Miss. 862, 116 So.2d 753; Sec. 6998.04, Code 1942; Dunn, Mississippi Workmen's Compensation Law, Secs. 71, 73, 80. II. Assuming for the sake of argument that O'Neal could be considered Gily's subcontractor once he began performance of his agreement, still, and nevertheless, performance under the contract had not been commenced at the time of Shankle's death. Mills v. Barrett, 213 Miss. 171, 56 So.2d 485; Mills v. Jones' Estate, 213 Miss. 680, 56 So.2d 488; Pace v. Laurel Auto Parts, Inc., 238 Miss. 421, 118 So.2d 871; Wallace v. Copiah County Lumber Co., 223 Miss. 70, 77 So.2d 316; Dunn, Mississippi Workmen's Compensation Law, Sec. 103.

  6. Morris Co. Industrial Park v. Thomas Nicol Co.

    35 N.J. 522 (N.J. 1961)   Cited 26 times
    Referring to Miller Act as a "comparable federal statute"

    Forsberg v. Koss ConstructionCo., 218 Iowa 818, 252 N.W. 258 ( Sup. Ct. 1934) (gravel delivered to "set ups"); J. Watts Kearny Sons v. Perry, supra ( 141 So. 13) (gravel delivered at various locations of work site); Webb v. BlueLightning Service Co., 237 Miss. 862, 116 So.2d 753 ( Miss. Sup. Ct. 1960) (gravel delivered at the pits); Huddleston v. Nislar, 72 S.W.2d 959 ( Tex. Civ. App. 1934) (improved rock delivered to work site); Baker v. YakimaValley Canal Co., 77 Wn. 70, 137 P. 342 ( Sup. Ct. 1913) (gravel loaded but not delivered); Neary v. Puget SoundEngineering Co., 114 Wn. 1, 194 P. 830 ( Sup. Ct. 1921) (sand and gravel delivered at work site); Marsh v. Rothey, 117 W. Va. 94, 183 S.E. 914 ( Sup. Ct. App. 1936) (crushed stone delivered); Northwest Roads Co. v. Clyde Equipment Co., 79 F.2d 771 (9 Cir. 1935) (crushed stone supplied); Tipton Realty Abstract Co. v. Kokomo Stone Co., 61 Ind. App. 681, 110 N.E. 688 ( App. Ct. 1915) (gravel supplied). See also, Indiana Limestone Co. v. Cuthbert, 126 Kan. 262, 267 P. 983 ( Sup. Ct. 1928) (cut stone delivered at work site); FosterLumber Co. v. Sigma Chi Chapter House of DePauw University, 49 Ind. App. 528, 97 N.E. 801 ( App. Ct. 1912) (cut stone delivered at construction); Staffon v. Lyon, supra (62 N.W. 354) (brick delivered to work site); Annotation, "Mechanic's Lien — Who Is a Materialman," 141 A.L.R. 321 (1942).

  7. Arcweld Manufacturing Co. v. Burney

    12 Wn. 2d 212 (Wash. 1942)   Cited 10 times
    In Arcweld Manfg. Co. v. Burney, 12 Wn.2d 212 (121 Pac [2d] 350), it was held that there are two exceptions to the rule that the authority of an agent may be revoked. They are: (1) Where the authority or power is coupled with an interest, and (2) where the authority is given as part of a security, or is necessary to effectuate such a security.

    A subcontractor is one who contracts with a principal contractor to perform all or part of the work or services which the principal contractor has already contracted to perform. Hihn-Hammond Lumber Co. v. Elsom, 171 Cal. 570, 154 P. 12, Ann. Cas. 1917C, 798; Grigsby v. L. E.R. Co., 152 Ky. 164, 153 S.W. 232; Smith v. Wilcox, 44 Ore. 323, 74 P. 708, rehearing denied, 75 P. 710; Fitzgerald v. Neal, 113 Ore. 103, 231 P. 645; Producers' Lumber Co. v. Butler, 87 Okla. 172, 209 P. 738; Republic Supply Co. v. Allen (Tex.Civ.App.), 262 S.W. 113; Marsh v. Rothey, 117 W. Va. 94, 183 S.E. 914. For a full list of cases defining the word "subcontractor" see 60 C.J. 669; 40 Words and Phrases (Perm. ed. 1940) 340, et seq.[3] In this instance, according to the agreed statement of facts, HOLC let the original contract to Burney, and the latter, in turn, "sublet" that contract to appellant.

  8. Alexander Thomson, Inc. v. B. Perini Sons, Inc.

    10 Conn. Supp. 38 (Conn. Super. Ct. 1941)   Cited 1 times

    But it may be noted that in a few cases where it has arisen the tendency is to recognize no such right as existent in persons performing or furnishing labor or materials more remote than those so doing to a subcontractor unless the obligation of the bond specifically provides otherwise. See Republic Creosoting Co. vs. Foulkes Contracting Co., 103 Ind. App. 457, 8 N.E.2d 416, 417; Marsh vs. Rothey, 117 W. Va. 94, 183 S.E. 914, 915; State vs. U.S.F. G. Co., 117 Or. 616, 244 P. 872. In the complaint, in the instant case, it is alleged that before the plaintiff entered into the agreement with the subcontractor to "manufacture" the stone pieces in question it was "aware" that the subcontractor had filed with the District "the joint and several surety bond in the amount of said contract."