Summary
In Western Cas. Sur. Co. v. Stevens et al., 218 Miss. 627, 67 So.2d 510, (1953), the bonding company denied a materialmen's claim.
Summary of this case from Mississippi Road Supply v. Western CasualtyOpinion
No. 38900.
November 2, 1953.
1. Public contracts — performance bonds — materials furnished and used in project — liability of surety.
Where State Building Commission terminated contractor's contract for performance of mechanical work on public building and notified surety on contractor's bond executed under statute relating to bonds of contractors constructing or repairing public buildings, and surety assumed completion of contract and entered into contract with second contractor, and thereafter certain materials previously ordered by first contractor from plaintiff were delivered to project site and were received by second contractor and installed in project, surety was liable on bond to plaintiff for materials furnished and used in project. Sec. 9014, Code 1942.
2. Public contracts — performance bonds — labor and materials furnished — used in public buildings — liability of surety.
Bond of contractor under applicable statute relating to bonds of contractors constructing or repairing public buildings requires that all laborers and materialmen must be paid for labor and materials that go into the construction of public buildings, regardless of whether they are remote materialmen, or whether they have furnished the materials directly to the principal contractor. Sec. 9014, Code 1942.
Headnotes as approved by Arrington, J.
APPEAL from the circuit court of Hinds County; M.M. McGOWAN, Judge.
Vardaman S. Dunn, Jackson, for appellant.
I. This is a statutory proceeding as for materials furnished a contractor on a construction project. The items were furnished to Horne and invoiced to him, but he was not, at the time of the sale or delivery, the contractor on the job, and the surety is not, therefore, liable. Mere delivery to and use in the completion is not enough. Chears Floor Screen Co. v. Gidden, 159 Miss. 288, 131 So. 426; Fairbanks Co. v. Briley, (Miss. 1899), 25 So. 354; Hendricks v. Robinson Stevens, 56 Miss. 694; Stubbs v. Capital Paint Glass Co., 160 Miss. 832, 131 So. 806; Wade v. Long, (Miss. 1934), 151 So. 564.
II. As to the claim of Charles M. Stevens, upon examination of the completed record of the trial and upon further and more mature consideration, we are unable to conscientiously urge upon the Court that there exists any grounds for reversal upon the principal issue involved or otherwise.
Satterfield, Ewing, Williams Shell; Watkins, Edwards Ludlam and James L. Spencer, Jackson, for appellees.
I. The suit is not for materials furnished "a contractor" but for materials furnished and used in the project. The main point of appellant seems to be that delivery to and use in the completion of the project is not enough. This flies squarely in the face of the statute and the bond itself. All persons are protected by the bond and the statute as well for materials used on the job. Arkansas Fuel Oil Co. v. Trinidad Asphalt Mfg. Co., 189 Miss. 366, 198 So. 41; Commercial Bank of Magee v. Evans, et al., 145 Miss. 643, 112 So. 482; Griffin, et al. v. Maryland Cas. Co., 57 So.2d 486; Oliver Construction Co., et al. v. Dancy, et al., 137 Miss. 474, 102 So. 568; Shuptrine v. Jackson Equipment Service Co., 168 Miss. 464, 150 So. 795; Stringer v. Craft, 55 So.2d 869; Union Indemnity Co. v. Acme Blow-Pipe and Sheet Metal Works, 150 Miss. 332, 117 So. 251; USFG v. Citizens State Bank of Moorhead, 150 Miss. 386, 116 So. 605; Secs. 9014, 9015, Code 1942.
II. In view of the above quoted statement from the brief of the appellant, it appears that no brief is necessary for the appellee, Charles M. Stevens. Horne v. Burnett's Lumber Supply Co., 44 So.2d 537.
Charles M. Stevens, doing business as Stevens Roofing and Sheet Metal Contractor, brought this suit against Arthur Horne and The Western Casualty and Surety Company for labor and materials furnished in the construction of a building in the amount of $268.15. Plumbing Wholesale Company intervened and sued for "two blow-off basins" furnished in the amount of $1,021.82. The cause was heard by the circuit court sitting without a jury, who entered judgment for the plaintiffs, from which judgments the Western Casualty and Surety Company appeals.
The facts briefly stated are as follows: On May 6, 1948, Arthur Horne entered into a contract with the State Building Commission to perform mechanical work for Mississippi Schools for the Blind and Deaf, in the amount of $279,051.00. The Western Casualty and Surety Company became surety on the performance bond. On March 10, 1950, the Building Commission terminated Horne's contract and notified the surety. The record discloses that the surety company, under the provisions of its bond, elected to assume completion of the contract and entered into a contract with Davis Plumbing Company for this purpose, under the supervision of Mr. A.E. Fisher. On March 30, 1950, Horne ordered through Plumbing Wholesale Company two "blow-off basins" at a cost of $1,021.82. It is admitted that on May 12, 1950, and May 16, 1950, the Plumbing Wholesale Company delivered the "blow-off basins" to "the project site and they were received by Davis Plumbing Company and installed in the project."
The appellant admits that the appeal against Charles M. Stevens, doing business as Stevens Roofing and Sheet Metal Contractor, is not well taken. As to the appellee, Plumbing Wholesale Company, the appellant contends: "This is a statutory proceeding as for materials furnished a contractor on a construction project. The items were furnished to Horne and invoiced to him, but he was not, at the time of the sale or delivery, the contractor on the job, and the surety is not, therefore, liable. Mere delivery to and use in the completion is not enough."
(Hn 1) There is no merit in appellant's contention. The items were neither furnished Horne, nor used by him, but on the contrary were delivered to, accepted and used in the building by Davis Plumbing Company, for which the surety became liable.
Section 9014, Miss. Code of 1942, provides as follows: "Bond must be given for pay of labor and materials. . . . Any person entering into a formal contract with this state, any county thereof, municipality therein, or any political subdivision whatsoever, therein, for the construction of any building or work or the doing of repairs, shall be required before commencing same to execute the usual bond, with good and sufficient sureties, with the additional obligation that such contractor or contractors shall promptly make payments to all persons supplying labor or material therefor; and any person who has furnished labor or materials used therein and wherefor payment has not been made, shall have the right to intervene and be made a party to any action instituted on such bond, and to have their rights adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the claim and judgment of the obligee . . ."
In Alabama Marble Co. v. United States Fidelity and Guaranty Co., et al., 146 Miss. 414, 111 So. 573, the Court held that (Hn 2) the bond of the contractor under Chap. 217, Laws of 1918 (Sec. 9014, Miss. Code of 1942), ". . . requires that all laborers and materialmen must be paid for the labor and materials that go into the construction of the public buildings, regardless of whether they are remote materialmen, or whether they have furnished the materials directly to the principal contractor; . . ."
Affirmed.
Roberds, P.J., and Lee, Holmes, and Ethridge, JJ., concur.