Opinion
No. 43167.
October 19, 1964.
1. Courts — stare decisis.
Where suit by conditional vendor of construction equipment to recover from surety on construction bond the cost of repairs made to such equipment by vendor after repossession had been decided adversely against vendor, case was stare decisis on such issue, which vendor sought to raise by intervention in construction company's suit on bond, and controlled such issue in intervention.
Headnote as approved by Ethridge, J.
APPEAL from the Circuit Court of Hinds County; RUSSELL D. MOORE, III, J.
Green, Green Cheney, Jackson, for appellant.
I. The Court should not have dismissed this suit because there had never been a trial on the merits of Euclid's claim for repair work done on the Jones County project.
II. Statutes on public bonds have always been liberally construed.
III. The Court should have granted Euclid's motion to transfer this case to Chancery Court.
IV. The Court should have allowed the affirmative defenses of Euclid to the objections of Western Casualty and Surety Company to the amendment offered by Euclid-Mississippi.
V. The Court should have sustained the motion of Euclid to strike the supplemental affirmative defenses to the intervention petition of Euclid filed herein by Western.
VI. The Court erred in not allowing Euclid to file its amendment to the intervention petition.
VII. The Court erred in dismissing this suit as there was no evidence before the Court to uphold the plea of collateral estoppel.
Collation of authorities: Alexander v. Woods, 115 Miss. 164, 75 So. 772; Caldwell v. Hartford Accident Indemnity Co., 248 Miss. 767, 160 So.2d 209; Canal Insurance Co. v. Howell, 248 Miss. 678, 160 So.2d 218; Cannady v. Espey, 230 Miss. 355, 92 So.2d 453; Edwards v. Kingston Lumber Co., 92 Miss. 598, 46 So. 69; Euclid-Mississippi, a Division of Trippeer Organizations, Inc. v. Western Casualty Surety Co., 249 Miss. 547, 163 So.2d 676; Euclid-Mississippi, a Division of Trippeer Organizations, Inc. v. Western Casualty Surety Co., 249 Miss. 779, 163 So.2d 904; Federal Compress Co. v. Craig, 192 Miss. 689, 7 So.2d 532; Hudson v. Gulf Refining Co., 202 Miss. 331, 30 So.2d 66; Illinois State Toll Comm. v. M.J. Boyle Co., 186 N.E.2d 390; Massachusetts Bonding Insurance Co. v. United States for use of Clarksdale Machinery Co., 88 F.2d 388; McQueen v. Ingalls Shipbuilding Corp., 229 Miss. 650, 91 So.2d 740; New Orleans N.E.R. Co. v. New Orleans G.N.R. Co., 107 Miss. 453, 65 So. 508; Patten Tractor Equipment Co. v. M.J. Boyle Co., 38 Ill. App.2d 38; Postal Finance Co. of Sioux City, Iowa v. Houze, 246 Miss. 620, 151 So.2d 820; Robertson v. F. Goodman Dry Goods Co., 115 Miss. 210, 76 So. 149; Shuptrine v. Jackson Equipment Service Co., 168 Miss. 464, 150 So. 795; Southern Package Corp. v. Beall, 181 Miss. 740, 180 So. 789; State v. Stewart, 184 Miss. 202, 184 So. 44; United States Fidelity Guaranty Co. v. Plumbing Wholesale Co., 175 Miss. 675, 166 So. 529; United States for use of Llewellyn Machine Corp. v. National Surety Corp., 268 F.2d 610; Viator v. Stone, 201 Miss. 487, 29 So.2d 274; Williams v. Patterson, 203 Miss. 865, 34 So.2d 366; Secs. 157, 161, Constitution 1890; Secs. 1464, 1475.5, 1511, Code 1942; 31 C.J.S., Estoppel, Sec. 5; Griffith's Mississippi Chancery Practice, Secs. 397, 508.
Cox, Dunn Clark, Jackson, for appellee.
I. Cited and discussed the following authorities. Euclid-Mississippi, a Division of Trippeer Organizations, Inc. v. Western Casualty Surety Co., 249 Miss. 547, 163 So.2d 676; Euclid-Mississippi, a Division of Trippeer Organizations, Inc. v. Western Casualty Surety Co., 249 Miss. 779, 163 So.2d 904; Fair v. Dickerson, 164 Miss. 432, 144 So. 238; Garraway v. Retail Credit Co., 244 Miss. 376, 141 So.2d 727; Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289; Seaboard Surety Co. v. Bosarge, 226 Miss. 482, 84 So.2d 517; Townsend v. Beavers, 185 Miss. 312, 188 So. 1, 189 So. 90; Sec. 9016, Code 1942.
This suit was initiated in the Circuit Court of Hinds County by Delta Construction Company against Western Casualty Surety Company (called Western) and another, on the bond of Western for a highway project being constructed in Jones County by R.G. Brown, Jr. Company (called Brown) under contract with the State Highway Department. Euclid-Mississippi, a Division of Trippeer Organizations, Inc. (called Euclid) intervened and filed a claim on Western's bond. The circuit court considered the issues on numerous pleadings and a stipulation of facts, and dismissed with prejudice Euclid's intervention petition.
(Hn 1) This is the suit on the Jones County project, which was the basis of a prior dismissal of Euclid's complaint in chancery court. Euclid-Miss. v. Western Cas. Sur. Co., 163 So.2d 676 (Miss. 1964). The present claim is based upon two invoices for repairs of heavy construction equipment. They show on their face that the repairs were made after repossession by Euclid, which was the conditional vendor of the equipment. This issue was decided in the second Euclid case. Euclid-Miss. v. Western Cas. Sur. Co., 163 So.2d 904 (Miss. 1964). It held that the cost of repairs by a conditional vendor, after repossession, of expensive, long-lived construction equipment could not be recovered in a suit on a highway surety bond. Both the pleadings and stipulation reflect that the repairs were made considerably after repossession. The second Euclid case constitutes stare decisis on this issue, and controls it.
Affirmed.
Kyle, P.J., and Gillespie, McElroy and Brady, JJ., concur.