Bank of Bienville v. Fidelity & Deposit Co. of Maryland
| Decision Date | 27 April 1931 |
| Docket Number | 28530 |
| Citation | 172 La. 687,135 So. 26 |
| Parties | BANK OF BIENVILLE v. FIDELITY & DEPOSIT CO. OF MARYLAND et al |
| Court | Louisiana Supreme Court |
Rehearing Denied May 25, 1931
Appeal from Second Judicial District Court, Parish of Bienville John S. Richardson, Judge.
Suit by the Bank of Bienville against the Fidelity & Deposit Company of Maryland and another. From the judgment, plaintiff and defendant named both appeal.
Judgment annulled, and plaintiff's demand rejected except as to certain claims, as to which demand is dismissed as in case of nonsuit.
Milner & Porteous and P. M. Milner, all of New Orleans, for appellant Fidelity & Deposit Co.
R. L Williams and J. Rush Wimberly, both of Arcadia, for appellant bank.
The Bank of Bienville sued the Fidelity & Deposit Company of Maryland as the surety for R. L. Hudson on his contract with the Bienville parish school board to repair and make additions to the high school building in the town of Bienville. Plaintiff predicated its claim on the default of the contractor, the alleged taking over and completion of the work by the contractor's surety, and that it had paid for and furnished certain materials and labor used in the building by the contractor, for which it held duly executed assignments and subrogations. In the alternative, plaintiff claimed that, if it was not a furnisher of materials and labor as alleged, it was a creditor of the contractor, having supplied him with the money to pay for the materials and labor, and was legally subrogated to the claims of the furnishers thereof against the contractor's surety. Plaintiff's demand was for $ 6,549.19, on which it recovered judgment for $ 430.09, with interest and costs. From this judgment, both plaintiff bank and defendant surety company appealed.
Under date of October 2, 1923, R. L. Hudson and the Bienville parish school board executed a written contract covering additions and repairs to the high school building at Bienville. The contractor agreed to do the work for $ 29,100, and the Fidelity & Deposit Company of Maryland signed his bond for $ 14,550. Both contract and bond were duly recorded. During the course of the work the contractor defaulted, and the surety company authorized the school board to take over and complete the job. The school board did so at a cost to the surety company of $ 2,865.37. The surety company also expended $ 4,508.30 in paying and canceling all recorded claims except those filed by the plaintiff bank.
The plaintiff bank sued as assignee and subrogee on thirteen claims. But none of the materials or labor composing these claims was furnished by the bank. All that the bank did was to lend to the contractor the money with which the claims, excepting possibly the four claims of John McAllister and Josh Neeham, were paid. And the assignments and subrogations herein sued on were not actually procured by the bank until long after the claimants had been paid and the debts discharged.
The plaintiff bank...
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