Summary
In Singer v. Anniston Hardware Co., 222 Ala. 620, 133 So. 910, a claim for harness sold to a subcontractor was denied for the reasons stated that the equipment was used also on another job, and was used only for three or four days on the one secured by the bond, and then they were carried to the other job. The only question there treated was the use of the harness on the job in question.
Summary of this case from United S. F. G. Co. v. Yeilding BrosOpinion
7 Div. 25.
April 16, 1931.
Appeal from Circuit Court, Clay County; E. P. Gray, Judge.
Hardegree Cockrell, of Ashland, for appellant.
The bond of the original contractor is not liable for anything not used in the construction of the highway. State, for Use of Wadsworth, v. Southern Surety Co., 221 Ala. 113, 127 So. 805, 70 A.L.R. 296. The burden is on the plaintiff, when suing on an open account, to prove its case. Crawford v. McLeod, 64 Ala. 240; Pollak v. Winter, 166 Ala. 255, 51 So. 998, 52 So. 829, 53 So. 339, 139 Am. St. Rep. 33; Fluke v. Martin, 26 La. Ann. 279; 1 C. J. 661; Central of Georgia R. Co. v. Gross, 192 Ala. 354, 68 So. 291; Orr Lanning v. Boockholdt, 10 Ala. App. 331, 65 So. 430. Where the verdict returned is the only one which could have been reached upon the evidence, it is an abuse of discretion to grant a new trial. Sutton v. Lowry, 39 Mont. 462, 104 P. 545.
Pruet Glass, of Ashland, for appellee.
The action of the trial court in granting or denying a motion for a new trial will not be reversed unless it appears to be clearly erroneous. Killian v. Killian, 169 Ala. 501, 53 So. 1005; Nobles v. Bank of Eclectic, 217 Ala. 124, 115 So. 13. Small tools and articles furnished in the construction of a highway are recoverable against the original contractor and his bond as material and supplies used in the performance of the contract. Union Ind. Co. v. State, for Use of McQueen Smith Farming Co., 217 Ala. 35, 114 So. 415; Union Ind. Co. v. State, 218 Ala. 132, 118 So. 148; Union Ind. Co. v. Handley, 220 Ala. 292, 124 So. 876.
The suit is on a state highway contractor's bond, given under Project S-307-B, Ragland to Talladega.
Plaintiff's claim is an account, $111.75, for harness and harness material sold a subcontractor for the equipment of mule teams.
The principal items are bridles, lines, collars, traces, hame strings, back bands, together with harness leather and other items for repairing or reconditioning harness.
In the recent case of U.S. Fidelity Guaranty Co. v. Benson Hardware Co., 132 So. 622, this court has, in a carefully prepared opinion by Mr. Justice Foster, reviewed our former cases, and stated the principles governing many classes of claims in cases of this kind. The instant case calls for no further discussion.
Ante, p. 429.
The evidence is without substantial conflict.
Gunter, the subcontractor, was engaged on two or three jobs at and about the time of the purchase of this bill, September 29, 1928.
There is no evidence that anything was said between the parties at the time touching the use of these materials or supplies on the state project. So far as appears, the seller may have known nothing of the buyer's connection with such project.
The evidence tends to show a part of such equipment was used on a job in another county, whether before or after going to the state job, the witness declines to say. Other evidence is that all of it was carried to the state project, and there used for only a "few days," some "three days," or "three or four days." Other evidence shows the work of this subcontractor on the state project was nearing its finish at that time, and the teams and equipment proceeded to another job.
The evidence may be reasonably held to show a purpose on the part of the buyer to use this material on this job, but certainly not on this job alone, or for sufficient time as to substantially consume such material.
No question being raised as to the classification of harness or harness parts and materials, as regards the coverage of the bond, we direct our attention to the use of same in this case.
Articles within such coverage, purchased for use on a given project, and primarily so used, thus substantially contributing to its completion, are secured by the bond without regard to whether they are worn out on the job.
But a mere temporary use, although in mind at the time, coupled with a purpose to use it, and the actual use of it wherever occasion arose, will not render bondsmen liable.
Such is this case.
Under any fair construction of the evidence, plaintiff's case was not made out.
At all events, the evidence "plainly and palpably" supported the verdict of the jury.
The court below erred in granting a new trial. This ruling is reversed, the order granting a new trial vacated, and a judgment here rendered conforming to the original judgment.
Reversed and rendered.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.