American Surety Co. of New York v. Stuart, 14244.

• Decision Date: 23 May 1941
• Docket Number: No. 14244.,14244.
• Parties: AMERICAN SURETY CO. OF NEW YORK v. STUART.
• Court: Texas Court of Appeals

151 S.W.2d 886

AMERICAN SURETY CO. OF NEW YORK v. STUART.

No. 14244.

Court of Civil Appeals of Texas. Fort Worth.

May 23, 1941.

Appeal from County Court at Law No. 1, Tarrant County; David McGee, Judge.

Action by R. A. Stuart against the American Surety Company of New York on a contractor's performance bond. From a judgment for plaintiff, defendant appeals.

Judgment reversed and judgment directed for defendant.

Lloyd E. Price and Hamilton Rogers, both of Fort Worth, for appellant.

R. V. Nichols, of Fort Worth, for appellee.

McDONALD, Chief Justice.

Bigley Electric Company, as contractor, undertook the construction of certain rural electric lines. Appellant, American Surety Company of New York, executed a performance bond for the contractor, guaranteeing, among other things, that the contractor would "promptly make payment to all persons supplying labor and materials for use in the construction of the project contemplated in the Construction Contract." The bond also recites: "This bond is made for the benefit of all persons, firms and corporations who or which may furnish any materials or perform any labor for or on account of the construction to be performed under the Construction Contract, and they, and each of them, are hereby made obligees hereunder with the same force and effect as if their own proper names were written herein as such, and they and each of them may sue hereon."

The contractor defaulted in the performance of the contract. Appellee R. A. Stuart, a practicing attorney at law, brought this suit against the surety company, alleging that he had performed certain legal services for the contractor, for which the contractor had failed to pay. Appellee recovered judgment in the trial court for $300, the amount sued for, and appellant has appealed.

The professional services rendered by appellee consisted of four items: (a) When the contractor, a resident of another state, arrived in Texas, it became apparent that the use of certain motor equipment owned by the contractor would require certain permits and licenses. Appellee was consulted by the contractor, and made the necessary arrangements with the public authorities for the required licenses and permits pertaining to such equipment. (b) Appellee represented the contractor in making banking arrangements for the handling of payroll accounts. (c) Appellee represented the contractor in negotiating a settlement of an indebtedness against one of the pieces of motor equipment owned by the contractor. (d) Appellee represented the contractor in a labor dispute which arose during the construction of the work. According to appellee, he and the contractor agreed upon a fee of $300 to cover all of the above mentioned services.

Both appellant and appellee advise us that they have been unable to find any decided cases involving liability of a bonding company in a case like the present one. Nor have we been able to find any.

We are convinced from reading the authorities that professional services rendered by an attorney would not be classed as "labor" within the meaning of that term as used in the mechanic's lien statutes of this state. See the following cases for discussions of the meaning of the term: Beakley v. Lind, Tex.Civ.App., 32 S.W.2d 671, manager of a farm held not to be a farm hand or common laborer. Ft. Worth & D. C. Ry. Co. v. Read Bros. & Montgomery, Tex.Civ.App., 140 S.W. 111, writ of error refused, subcontractor held not to be a laborer. Jackson v. Downs, Tex.Civ. App., 149 S.W. 286, one who contracted to haul logs held to be a contractor, not a laborer. Lindale Brick Co. v. Smith, 54 Tex.Civ.App. 297, 118 S.W. 568, writ of error denied, superintendent of brick plant held not to be a laborer. Dunn v. Hankins, Tex.Civ.App., 127 S.W.2d 983, one who contracted to cut and haul spinach to a canning factory held not to be a laborer.

In 24 Words & Phrases, Perm.Ed., page 16, it is said: "The word `labor,' in legal parlance, has a well-defined, understood, and accepted meaning. It implies continued exertion of the more onerous and inferior kind, usually and chiefly consisting in the protracted exertion of muscular force. `Labor' may be business, but it is not necessarily so, and business is not always labor. In legal significance labor implies toil; exertion producing weariness; manual exertion of a toilsome nature."

In interpreting the meaning of the term "labor performed", as used in the venue statute, Art. 2390, § 4, Revised Civil Statutes, it is held that the term "labor" does not include the professional services rendered by a real estate broker. Felton v. Johnson, 112 Tex. 412, 247 S.W. 837; Welsh v. Chapman, Tex.Civ.App., 87 S.W. 2d 293. The Felton case cites with approval the old case of Weymouth v. Sanborn, 43 N.H. 171, 80 Am.Dec. 144. In the latter case a physician sought to levy execution...