American Surety Co. v. Huey & Philp Hardware Co.

• Decision Date: 23 December 1916
• Docket Number: (No. 7648.)
• Citation: 191 S.W. 617
• Parties: AMERICAN SURETY CO. v. HUEY & PHILP HARDWARE CO.
• Court: Texas Court of Appeals

191 S.W. 617

AMERICAN SURETY CO. v. HUEY & PHILP HARDWARE CO.

(No. 7648.)

Court of Civil Appeals of Texas. Dallas.

December 23, 1916.

Rehearing Denied. February 3, 1917.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by the Huey & Philp Hardware Company against the American Surety Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Adams & Stennis, of Dallas, for appellant. Spence & Haven, of Dallas, for appellee.

RAINEY, C. J.

Appellee sued appellant to recover on a bond executed by appellant as a surety for L. R. Wright & Co., a firm composed of L. R. Wright and O. L. Hitchcock, to Phillips county, Ark., said bond being for the faithful performance of a contract to build a courthouse and jail, entered into with Phillips county by said Wright & Co., which bond bound the makers to pay off and discharge all indebtedness contracted by said Wright & Co. for material, labor, etc., in constructing said buildings, and giving the right to all such creditors to sue on such bond. An indebtedness of $498 was due appellee Huey & Philp Hardware Company for materials furnished for said buildings. The appellant answered by plea in abatement, that the suit was prematurely brought by the terms of the contract, the nonjoinder of certain parties, general and special demurrer, and general denial. The plea in abatement and demurrers were overruled. A trial was had without a jury, and judgment rendered in favor of appellee for the $597, claimed amount, from which this appeal is prosecuted.

The facts show that L. R. Wright & Co., a firm composed of L. R. Wright and O. L. Hitchcock, residents of Dallas county, Tex., entered into a contract to construct a courthouse and jail building for Phillips county, state of Arkansas, to be located in the city of Helena. In accordance with the laws of Arkansas said Wright & Co. executed a bond payable to the state of Arkansas, with appellant as surety, for the faithful performance of said contract. Said bond was given for the benefit of any person or persons furnishing labor or material in the construction of said buildings, and "shall have the right to bring suits on this obligation for any and all sums that may be due them for work or material furnished in or about the same, at any time within six (6) months from the date of the completion of the said contract." Appellees furnished to Wright & Co. the material sued for, and same was used in the construction of said building. Before the said building was finally completed O. L. Hitchcock died, and L. R. Wright was adjudged a bankrupt. Appellant is incorporated under the laws of New York, but is doing business in Texas under a permit.

The first assignment of error presented by appellant is:

"The court erred in overruling the defendant's plea in abatement as set out in the first paragraph of its first amended original answer, to the effect that this suit was instituted before the completion of a contract and building referred to in plaintiff's amended petition, and was prematurely instituted, because the law and bond as pleaded by plaintiff do not authorize the institution of such a suit before the completion of said buildings and contract."

The proposition submitted is:

"A suit instituted before the completion of a contract for material furnished to be used in the contract building against a surety whose liability depends upon the use of the material in the building and on a contract which expressly provides that such materialman shall have the right to bring suit on said contract obligation for the sum due for the material going into the building, at any time within six months from the date of the completion of said contract, is prematurely brought, and on proper plea and proof should be dismissed."

While the evidence shows that at the time suit was instituted the building was not completed, we are of the opinion that the language of the law and bond does not require the completion of the building before suit can be instituted. The bond was evidently made to conform to the law of Arkansas, which reads:

"That no action shall be brought on said bond after six months from the completion of said public improvement or building."

The bond reads:

"That all persons and corporations having claims against the said contractor, or any subcontractors under them, shall have the right to bring suits on this obligation for any and all sums that may be due them for work or material furnished in or about the same, at any time within six months from the time of the completion of said contract."

Both the law and bond merely fix a period of limitation in which suits are to be brought, which we conclude mean that no suit can be brought on a claim "after six months from the completion of the building." The law and bond are further silent as to when the right to sue arises; hence we overrule this assignment of error.

Appellant's second assignment of error reads:

"The court erred in overruling the defendant's plea in abatement as set out in the first paragraph of said amended answer, to the effect that the law and bond pleaded by the plaintiff in said amended petition contemplate and require that the suits for the enforcement of liability under said law and under said bond shall be brought in the county where the building has been constructed, and the suit should have been instituted, if at all, in Phillips county, Ark., and its venue in this court is improperly laid."

The proposition submitted is:

"Where the law and bond on which suit is based requires that suits for enforcement of liability thereunder shall be brought in Phillips county, Ark., and the defendant pleads and urges the right to be sued on the venue required by law, it is error to overrule such plea and deny such right and compel the defendant to try the issues in another county and state."

The bond sued on and executed by appellant to secure Phillips county, Ark., and laborers and furnishers of material for the construction of the courthouse and jail by L. R. Wright & Co. recites:

"This bond being given to secure the county of Phillips and the commissioners of public buildings of said county, and also all persons and corporations furnishing labor or material going into the said construction of said work against any loss whatsoever, as provided by Act 446 of the General Assembly of Arkansas, approved June 2, 1911."

The statement of facts shows the full Act 446, and nowhere therein does it provide for the venue of a suit by laborers or materialmen on the bond. Nor is there any provision in said bond in reference thereto.

P. O. Thweatt testified by deposition that he had been practicing law in Arkansas since 1860; that the laws of Arkansas provide that suit shall be brought in...