Arkansas Road Construction Company v. Evans

• Decision Date: 10 April 1922
• Docket Number: 292
• Parties: ARKANSAS ROAD CONSTRUCTION COMPANY v. EVANS
• Court: Arkansas Supreme Court

239 S.W. 726

153 Ark. 142

ARKANSAS ROAD CONSTRUCTION COMPANY v. EVANS

No. 292

Supreme Court of Arkansas

April 10, 1922

Appealed from Howard Circuit Court; Percy Steel, special judge; affirmed.

STATEMENT OF FACTS.

Appellee commenced this suit in the justice court against appellants to recover $ 86.35. The Arkansas Road Construction Company made a contract with Road Improvement District No. 7, of Howard County, Ark., to construct the Mineral Springs and Saratoga road in Howard County, Ark., according to certain plans and specifications; and associated with it Gregory & Wilson to help finance it and, as compensation therefor, to share in the profits. They made a contract with Davies Brothers to construct about three miles of the road. Certain laborers worked for Davies Brothers in the construction of the three miles of road sublet to them by the Arkansas Road Construction Company. Davies Brothers issued to these laborers certificates that they owed them the amounts named therein for labor on the Mineral Springs and Saratoga road. The laborers made a written assignment of these certificates to W. D. Evans who, upon payment being refused, brought suit against the Arkansas Road Construction Company.

An answer was filed in which liability was denied, and in which as a further defense, it was alleged that W. D. Evans was not entitled to maintain the action because the claims were not assignable.

Judgment was rendered in favor of the plaintiff by the justice of the peace, and an appeal was taken to the circuit court. There the case was tried upon the facts stated above and also the evidence of witnesses tending to show that the labor had actually been performed on said road to the amount of said certificates of indebtedness.

There was also introduced in evidence the contractor's bond which contained, among other provisions, the following "and shall pay all bills for materials and labor entered in the construction of said work."

The circuit court directed a verdict in favor of appellee, who was the plaintiff below, and the appellant, Arkansas Road Construction Company, which was one of the defendants below has duly prosecuted an appeal to this court.

Judgment affirmed.

W. P. Feazel, for appellant.

There was no privity of contract between appellee, or his assignors, and the appellants. 100 Ark. 47; 144 Ark. 8; 65 Ark. 27.

The appellee, having failed to make his assignors parties, cannot maintain this suit. 47 Ark. 541.

Jas. S. McConnell, for appellee.

OPINION

HART, J. (after stating the facts).

In Oliver Construction Co. v. Williams, 152 Ark. 414, 238 S.W. 615, it was held that our statute providing that a contractor's bond given thereunder for the faithful performance of public work shall inure to the benefit of those furnishing labor and materials, and that an action may be maintained by one of such persons to recover for labor performed or materials furnished in the fulfillment of the contract. To the same effect see United States Gypsum Co. v. Gleason, (Wis.) 17 L.R.A. (N.S.) 906; Knight & Jillson Co. v. Castle, (Ind.) 27 L.R.A. (N.S.) 573 and case note, and National Surety Co. v. Hall-Miller Decorating Co., (Miss.) 46 L.R.A. (N.S.) 325.

In the last mentioned case, in discussing the reason for the statute providing for the execution of such a bond by the contractor in the case of public works, the court said: "Taking it as a cold-blooded business proposition this clause in the bond would naturally encourage subcontractors of the best sort to take contracts to do certain parts of the work; it would tend to prevent the abandonment of the work by mechanics not promptly paid their wages by the contractors, who might be suspected to be of doubtful financial solvency; it would procure the best work and material and the prompt services of all workers and...