American Bonding Co. v. Morris
Decision Date | 03 June 1912 |
Citation | 148 S.W. 519 |
Parties | AMERICAN BONDING CO. OF BALTIMORE v. MORRIS. |
Court | Arkansas Supreme Court |
Action by John B. Morris against the American Bonding Company of Baltimore and others. From an order amending a decree, the Baltimore Company appeals. Affirmed.
Appellee filed his complaint on May 5, 1909, in the Pulaski chancery court against Hugh McLennan, a building contractor, the appellant, surety on his bond, as such, and 18 other defendants, alleging that he had agreed with the said McLennan for the construction of a building for an orphanage near the city of Little Rock to be maintained as a home for indigent orphans as a public charity; that the contract price of the building was $86,440, "to be paid on estimates made by the architect, monthly, during the progress of the work * * * based on the value of the labor performed and material used in the building, 10 per cent. of the estimates to be retained until full completion and final acceptance of the work." A copy of the contract was set out in the complaint, and also a copy of the bond executed by the contractor in the sum of $40,000, with the American Bonding Company, appellant, as surety thereon. It was alleged
Appellant answered on July 16, 1909, admitting the execution of the bond and the contract sued on, and It also demurred to the complaint, but there seems to have been no ruling of the court upon the demurrer.
On October 28, 1909, appellee filed an amended and substituted complaint, amplifying the allegations of the original complaint, and setting out in more detail the facts relating to the history of the construction of the building, but making no change in the allegations relative to the execution and terms of the bond. It further alleged that soon after the estimate in March it became apparent that the contractor was unable to carry out his contract, and that the plaintiff had an interview with him and with the surety on the contractor's bond to decide what course was best to pursue in completing the building; that it was agreed that the plaintiff should guarantee and be responsible for the materials thereafter furnished and labor performed, and the amount paid on such guarantee should be charged to the contractor under the contract; that the work was begun on August 30, 1908, and completed and the last payment made on October 14, 1909. An itemized account of the cost of the building with the amounts paid on account of it was filed, which showed that the plaintiff had paid $730.20 in excess of the contract price, for which he claimed judgment against McLennan and the bonding company. It then sets out the names of all claimants who had attempted to assert liens and those who had given notice that they would do so, making them defendants, and prayed "that this court will inquire into the validity of each and all of the said claims, and, upon a final hearing, will adjudge that the orphanage building, having been erected for the purpose of a public charity, is not subject to mechanics' liens, and that the only indebtedness that ever existed from the plaintiff to the defendant McLennan has been fully paid, and, having been contracted for the purpose of constructing a building to be used as a public charity, the plaintiff was not subject to garnishment at the suit of any of the defendants; but, if the court shall ascertain and determine the issue, either upon the claims of mechanics' liens or upon the garnishments against plaintiff, then and in such event, the plaintiff prays in the alternative that the court will ascertain the order of priorities between the defendants, if there be any, and what amounts the defendants, or either of them, are entitled to demand of the plaintiff together with the basis of such right, and will, by its decree, fix the amount due to each, and that it will render judgment in plaintiff's favor against the defendant McLennan, and the surety upon his bond, for all such amounts, together with the amount to which plaintiff is entitled because of excessive payment, and the defective construction of the floors as hereinabove set out, and the plaintiff further prays for all other relief to which he may be entitled."
No answer was filed by appellant to the amended and substituted complaint, and the cause was heard upon several of the interventions, and a decree rendered fixing a lien on the building in favor of Nowlin Lumber Company, Hilliard Bros., and the Southwestern Tile Company, for the respective amounts of $1,966, $1,933, and $423.55, which amounts were ordered to be paid within 60 days, and the property be sold if it was not done, and, further, "that the said John B. Morris have and recover of and from the American Bonding Company the said several amounts as aforesaid and have execution therefor on payment of any of the amounts aforesaid," with judgment for costs also arising from the...
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Webb v. Strait
... ... a part of the record, and that holding was reaffirmed in the ... case of American Bonding Co. v. Morris, 104 ... Ark. 276, 148 S.W. 519. No answer has yet been filed and the ... ...