Detroit Fidelity & Surety Co. v. CENTRAL STATION EQUIP. CO.

• Decision Date: 09 November 1932
• Docket Number: No. 955.,955.
• Citation: 1 F. Supp. 845
• Court: U.S. District Court — Southern District of Florida
• Parties: DETROIT FIDELITY & SURETY CO. v. CENTRAL STATION EQUIPMENT CO. et al.

1 F. Supp. 845

DETROIT FIDELITY & SURETY CO. v. CENTRAL STATION EQUIPMENT CO. et al.

No. 955.

District Court, S. D. Florida, Tampa Division.

November 9, 1932.

Sutton, Tillman & Reeves, of Tampa, Fla., for complainant.

Shutts & Bowen, Oppenborn & Mincer, Morris & Myers, and Lilburn R. Railey, all of Miami, Fla., Kurtz & Roll and Allen Clements, all of Ft. Myers, Fla., F. D. McArthur, of Birmingham, Ala., H. H. Taylor, of Miami, Fla., Altman, Morrow & Cooper and McKay, Withers & Ramsey, all of Tampa, Fla., Wiseheart & Gay, of Miami, Fla., and Knight, Thompson & Turner, of Tampa, Fla., for defendants.

AKERMAN, District Judge.

Complainant, Detroit Fidelity & Surety Company, a corporation, a surety company, filed its bill against the Central Station Equipment Company, the contractor, and others, in which it set out that it became a surety on a bond of the Central Station Equipment Company payable to the state of Florida, said bond securing a faithful performance of a contract for the erection of a bridge at Ft. Myers, Fla., and containing the usual provisions of a contractor's bond on a public contract under the statutes of the state of Florida; the object of the suit being to require the application of all remaining unpaid sums due the contractor to the payments of amounts due materialmen and laborers, etc., and fix the amount of liability as surety on such bond to such materialmen and laborers and upon the payment of such amounts to secure an exoneration of said bond.

Numerous materialmen, laborers, and others asserting claims against the contractor arising out of said contract were made parties either in the original bill or were brought in by amendment. The case was referred to a master to take testimony and report findings of fact and conclusions of law, and by settlements and compromises a large number of the defendants were eliminated; the case finally going to trial before the master as to the validity of four claimants, to wit, the Third National Bank of Miami, F. P. Lyons Iron Works, C. E. Hillyer, and A. E. Hutchinson. The master found in favor of the claim of the Third National Bank of Miami and F. P. Lyons Iron Works and against the claims of C. E. Hillyer and A. E. Hutchinson. The complainant has filed exceptions to the master's report wherein he finds in favor of the Third National Bank and the F. P. Lyons Iron Works. C. E. Hillyer filed no exception. A. E. Hutchinson filed exceptions, but his counsel did not press the same at the argument here. Therefore the finding of the master in regard to the claims of C. E. Hillyer and A. E. Hutchinson is approved.

F. P. Lyons Iron Works. — The only contention presented here in behalf of complainant is that the testimony did not show that the material furnished by the F. P. Lyons Iron Works entered into the construction of the bridge. While the testimony is rather meager, the court is of the opinion that a fair inference from all the testimony sustains the contention that this material did enter into the bridge. Therefore the finding of the master as to this claim is approved.

Third National Bank of Miami. — This claim presents a rather difficult question, and I have carefully reviewed all the testimony presented before the master as well as the authorities...