Barry v. Columbia Casualty Co.

• Decision Date: 13 April 1931
• Citation: 133 So. 852,101 Fla. 168
• Parties: BARRY v. COLUMBIA CASUALTY CO. et al.
• Court: Florida Supreme Court

133 So. 852

101 Fla. 168

BARRY v. COLUMBIA CASUALTY CO. et al.

Florida Supreme Court, Division B.

April 13, 1931

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Action by the Right Reverend Patrick Barry, Bishop of St. Augustine against the Columbia Casualty Company and another. Judgment for defendants, and plaintiff brings error.

Reversed.

Syllabus by the Court.

SYLLABUS

Under the law of this state, the obligee may sue on a construction bond without joining with him the person or persons for whose benefit the bond was executed.

COUNSEL

Pleus & Williams, of Orlando, for plaintiff in error.

Maguire & Voorhis, of Orlando, for defendants in error.

OPINION

TERRELL J.

Plaintiff in error brought a common-law action against defendants in error in the circuit court of Orange county. A demurrer to the declaration was sustained, final judgment was entered, and writ of error taken to that judgment.

The defendants in error were principal and surety on an indemnity bond, being the same bond and contract as that involved in Johnson Electric Company, Inc., v. Columbia Casualty Company et al. (Fla.) 133 So. 850, decided this date. Except as given in this opinion the facts in this case are identical to those in the case last mentioned. The sole question of whether or not there was a misjoinder in this cause is the only one we deem it essential to answer, as all others were fully answered in Johnson Electric Company, Inc v. Columbia Casualty Company et al., supra.

In the instant case the Right Reverend Patrick Barry, on behalf of subcontractors and materialmen, sues Columbia Casualty Company as surety and Louis Fleisher Construction Company as principal on the construction bond and contract as above referred to. There were seven of these subcontractors and materialmen, all having contracts with the principal contractor. Each count of the declaration is predicated on the subcontracts, the damages suffered, the posting of the bond, the alleged fact that it protected subcontractors and materialmen, the breach of the contract, and such other allegations as are sufficient to state a cause of action. In Johnson Electric Company, Inc., v. Columbia Casualty Company et al., we held that subcontractors were protected by this bond.

The contention is that such a declaration constitutes a misjoinder both as to parties plaintiff and as to causes of action.

Section 2585, Revised General Statutes of 1920 (section 4225 Compiled General Laws of 1927), provides that causes of action of whatever kind, by and against the same parties in the same rights, may be joined in the same suit, except that replevin and ejectment shall not be joined together nor with other causes of action. Our 'real parties in interest' statute (section 2561, Revised General Statutes of 1920, section 4201, Compiled General Laws of 1927) in part provides that an executor, administrator trustee of an express trust (including a person with whom or in whose name contract is made for the benefit of another, or when expressly authorized by statute), may sue without joining with him the person for whose benefit...