Opinion
No. 31598.
March 4, 1935.
1. MUNICIPAL CORPORATIONS.
Where municipal paving contract was fully performed, and city commissioners entered order setting forth balance due contractor, approving estimate, and ordering payment, there was "final settlement" of contract within statute giving materialmen action on contractor's bond, though payment had not been made (Code 1930, sections 5972, 5973).
2. MUNICIPAL CORPORATIONS.
Materialman's action on municipal paving contractor's bond which was begun more than one year after final settlement of paving contract was not barred, where no publication of final settlement was made (Code 1930, sections 5972, 5973).
APPEAL from the circuit court of Hancock county.
HON.W.A. WHITE, Judge.
Suit by the Dixie Minerals Corporation against the Dixie Asphalt Paving Company and another, wherein the Jahncke Service, Incorporated, appeared and filed a claim. From a judgment for defendants on directed verdict, plaintiff and intervener appeal. Reversed and rendered for Jahncke Service, Incorporated, and remanded as to Dixie Minerals Corporation.
Gex Gex, of Bay St. Louis, for appellant, Dixie Minerals Corporation.
The city of Bay St. Louis, of which the court will take judicial knowledge, is operating under a special charter, Acts of 1886, Chapter 279. Under that charter and the laws of the state, it had a right to contract for the improvements of streets in any manner in which it saw fit and under the terms as set out in the contract attached to the declaration in this suit. There is no provision in its charter providing for any retainage fund and no limitation upon it paying for the work as it progressed.
The only requirement for giving public work incumbent upon the city of Bay St. Louis is that set out in Section 5971 of the Code of 1930, which provides that before a contract is given for public work of this character the city must exact a bond, payable to it, for the faithful performance of said work and the payment to all laborers and materialmen furnishing material in the performance of said work.
Sections 5972, 5973, Code 1930.
The court erred in holding that under the contract in this cause that the city of Bay St. Louis was required to keep any retainage fee for the contractor.
The court erred in not holding that the bonding company consented to the payment of the entire amount due the contractor or his assignee.
The court erred in holding that the suit was prematurely filed because filed before final settlement.
McGraw v. Board of Supervisors, 87 So. 899; First National Bank of Aberdeen v. Monroe County, 95 So. 726; Canton Exchange Bank v. Yazoo County, 109 So. 1; Davis Company, Inc. v. D'Lo Guaranty Bank, 138 So. 802.
Gardner Backstrom, of Gulfport, for appellant, Jahncke Service, Inc.
If the defense that the suit was premature is fully established, still that defense does not bar the right of action, but only abates the then pending suit. When the flight of time has fully matured the plaintiff's right, he may then maintain a new suit. It requires no citation of authority for this court to know that the defense of premature bringing of the suit is matter in abatement and not in bar.
Abatement is a special defense which must be specially pleaded, and must be sworn to, unless the abatement matter appears on the face of the record.
Section 532, Code of 1930.
The mode of pleading by way of notice of affirmative defenses under the general issue has its foundation and its very existence in Section 536 of the Code of 1930.
Lewis v. State, 65 Miss. 468, 4 So. 429.
By pleading in bar the defendants waived all matters pleaded in abatement.
Lewis v. State, 65 Miss. 468, 4 So. 429.
The alleged prematurity of the suit was not before the court for adjudication, and the granting of the peremptory instruction for the defendants on that grounds was for that reason manifest error necessitating a reversal of this cause.
The only judgment which can be entered by the court when a plea in abatement is sustained is that the writ be quashed or the suit abated.
Kendrick v. Watkins, 54 Miss. 485. U.B. Parker, of Wiggins, and Robert Genin, of Bay St. Louis, for appellees.
It cannot be disputed that under the law in Mississippi a municipality or county or other subdivision of government may make a contract and provide that a certain per cent of the contract price may be retained until final completion of the work.
Canton Exchange Bank v. Yazoo County, 144 Miss. 579, 109 So. 1.
If there is no stipulation in the contract for a retained percentage the entire amount of the contract price is considered as retainage and the surety has a lien upon that superior to any assignee.
Davis Co., Inc., v. D'Lo Guaranty Bank, 133 So. 219, 138 So. 802; Miss. Fire Ins. Co. v. Evans, 120 So. 738; U.S.F. G. Co. v. City of Canton, 128 So. 744.
If no suit should be brought by the obligee within six months from the completion and final settlement of said contract, then any person supplying therein labor or materials shall, upon application and furnishing affidavit to the obligee that such labor or materials have been supplied and payment not been made, be furnished with a certified copy of said contract and bond upon which he shall have a right of action for his use and benefit against said contractor and the sureties thereon and to prosecute the same to final judgment and execution.
Sections 5972, 5973, Miss. Code 1930.
The money is still in the city treasurer and the surety company still has a lien on it and is there for the protection of all parties when a settlement is had.
If there has been no settlement they could not have filed suit in the first place, no better than the original plaintiff and if the court was correct in giving the peremptory instruction in favor of defendant then it was bound to do the same thing with reference to claims of intervenors.
Argued orally by W.J. Gex, for appellant, and by Robert L. Genin, for appellee.
The Dixie Asphalt Paving Company entered into a contract with the city of Bay St. Louis to pave certain of its streets, and executed a bond for the faithful performance thereof with the United States Fidelity Guaranty Company as surety thereon. The appellant Dixie Minerals Corporation sued on this bond in accordance with sections 5971 et seq., Code 1930, to recover the amount alleged to be due it by the paving company for materials furnished it with which to pave the street. Publication of the suit was made in accordance with section 5976, Code 1930, and thereafter Jahncke Service, Inc., appeared, in accordance with section 5974, Code 1930, and filed a claim for material furnished the paving company for use in paving the streets.
The appellees filed a plea of the general issue, and gave notice thereunder that it would "offer evidence to show that said suit by the plaintiff against the defendants is brought prematurely in that the city of Bay St. Louis, Mississippi, has never made final settlement for the work under said contract and that no one else has ever made final settlement for said work," and as against Jahncke Service, Inc., that "if what has been done constitutes final settlement, that the said claim or petition of the intervenor is barred because it was filed within one year after the performance and final settlement as provided by law." The word "not" was probably omitted between the words "was" and "filed." A plea of set-off against the Dixie Minerals Corporation was also filed. No objection was made in the court below to the defendants pleading at the same time both to the merits and in abatement of the action.
The case proceeded to trial apparently without reference to the plea of set-off, but on the general issue and notice thereunder. The court below was requested, but declined, to direct a verdict for the Jahncke Service, Inc. It directed a verdict against both of the plaintiffs in favor of the defendants, giving as a reason therefor that the suit was prematurely filed. The judgment rendered, however, did not abate the suit, but is an ordinary judgment on the merits that the plaintiffs "do have and recover nothing from the said defendants," etc.
The evidence discloses that the contract for the paving was fully performed, and that the city commissioners entered on their minutes the following order setting forth the balance due the paving company therefor, which is, in part, as follows: "It is therefore ordered that said estimate is hereby approved and allowed, on condition that the Bonding Company be notified of its approval and allowance, and that Dixie Asphalt Paving Company be paid for said work in accordance with the understanding and agreement had with the Dixie Asphalt Paving Company, after the Bonding Company has consented to the same, the said consent to be in writing, the said estimate being for the sum of fifteen thousand seven hundred eighty-one dollars and sixty-one cents."
Sections 5972 and 5973, Code 1930, provides that: "If no suit should be brought by the obligee [the city] within six months from the completion and final settlement of said contract, then any person supplying therein labor or materials shall" have the right to sue thereon; but such suit "shall not be commenced until after the complete performance of said contract, and final settlement thereof, and shall be commenced within one year after the performance and final settlement of said contract and not later; provided that if the contractor quits or abandons the contract before its completion suit may be instituted by any such person on said bond and shall be commenced within one year after such abandonment and not later. But said time for the institution of said section shall not begin to run until the obligee shall have made said final settlement or determined said abandonment and published notice thereof in some newspaper published in said county, or if there be none then in some newspaper having a general circulation therein."
Was there a final settlement within the meaning of the statute? The appellees' contention seems to be that the settlement cannot be final until payment has been made for the work done under the contract. We do not so understand the statute. Its purpose is to prevent laborers and materialmen from suing on the bond until the obligee therein sues thereon, or has no further interest therein. When the public authority for which work of the character contemplated by the statute has been done, and it adjudges in the manner required for the evidencing thereof that the contractor has performed his contract and nothing further remains to be done except for the public authority to pay him therefor, the purpose of the statute has been accomplished, and there has been a final settlement of the contract within the statute's meaning. Globe Indemnity Co. v. U.S. of America, etc., 291 U.S. 476, 54 S.Ct. 499, 78 L.Ed. 924.
Whether this suit was begun more than one year after final settlement is of no consequence, for no publication thereof was made. Marquette Cement Mfg. Co. v. Fidelity Deposit Co. of Maryland (Miss.), 158 So. 924, recently decided but not yet reported [in State Report]. The request of Jahncke Service, Inc., for a directed verdict should have been granted. No such request was made by the Dixie Minerals Corporation.
The judgment of the court below will be reversed, and judgment final for the Jahncke Service, Inc., will be rendered here, and as to Dixie Minerals Corporation, the case will be remanded.
So ordered.