Bowen v. W. O. Eaton & Co.
| Decision Date | 19 November 1909 |
| Docket Number | 6,494 |
| Citation | 89 N.E. 961,46 Ind.App. 65 |
| Court | Indiana Appellate Court |
| Parties | BOWEN ET AL. v. W. O. EATON & CO. ET AL |
Rehearing denied March 17, 1910.
Transfer denied May 31, 1910.
From Clinton Circuit Court; Samuel R. Artman, Special Judge.
Suit by Abner T. Bowen and others against W. O. Eaton & Co. and others. From the decree entered, plaintiffs appeal.
Affirmed.
L. D Boyd, George W. Julien, John L. Hanna and Gus A. Hall, for appellants.
Edwin P. Hammond, William V. Stuart, Allison E. Stuart, Dan W. Simms and N. J. Howe, for appellees.
This is a suit on behalf of appellants on four promissory notes and proceedings in attachment against W. O. Eaton & Co., William O. Eaton and Sheldon S. Eaton, and in garnishment against the County of Carroll, as debtors of W. O. Eaton & Co., William O. Eaton and Sheldon S. Eaton. There was a special finding of facts and conclusions of law stated thereon.
It appears from the special finding of facts that William O. Eaton and Sheldon S. Eaton, in 1903, 1904 and 1905, were doing business under the firm name of W. O. Eaton & Co., and under such firm name, in 1903, entered into a contract for the construction of the Madison township gravel road, nineteen and one-fourth miles in length, in Carroll county, for $ 28,800. Estimates of the work done were to be made every thirty days, or upon the completion of any portion thereof, and eighty per cent of such estimates was to be paid as the work progressed. The work was to be completed by January 1, 1905, and the contract stipulated that in the event said contractors failed so to complete said work the board of commissioners, at its option, was authorized to complete it according to plans and specifications, and charge the excess of the cost over the contract price, if any, to said contractors. Contemporaneously with this contract, they gave a bond for its faithful performance, which bond was signed by appellees, W. O. Eaton & Co., William F. Frey, John C. Frey, S. O. Taylor and S. S. Eaton. Said W. O. Eaton & Co. entered upon the work under their contract. On August 7, 1905, said contractors had completed about six miles of said road and had worked on twelve and one-fourth miles of said road, and on said date said contractors abandoned said contract and refused to complete it, and said bondsmen entered into an agreement with the board of commissioners for the completion of said road in accordance with the plans and specifications. By said agreement said commissioners were requested to pay all money, thereafter due for the construction of said road, to appellee Russell K. Bedgood, who was to pay out of said money all expenses theretofore or thereafter incurred in the construction of said road, the surplus remaining after such payment to be paid over to W. O. Eaton & Co. or their assigns. By said agreement the parties thereto reserved all legal rights as between themselves, or as between the sureties on the bond, and W. O. Eaton & Co. and the board of commissioners. Prior to the agreement last mentioned, the board of commissioners had paid to W. O. Eaton & Co. for work done on said contract, the sum of $ 15,560, leaving unpaid on the contract price the sum of $ 13,240. After the agreement last mentioned, appellees Frey, Frey & Taylor took charge of the road, furnished the labor and material, and completed the road in accordance with the plans and specifications, and it was duly accepted by the board, and they also repaired a portion upon which W. O. Eaton & Co. had done work prior to said agreement, which work was necessary in order to procure its acceptance by the board. During the construction of the road, under the last agreement, the commissioners paid out to Russell K. Bedgood, for W. O. Eaton & Co., the sum of $ 9,896. Under said agreement said Frey, Frey & Taylor paid out upon debts incurred by W. O. Eaton & Co., prior to August 7, 1905, for labor and material used in the work done by them prior to said date, $ 4,177.36, for labor and material used in the repair of the work done by W. O. Eaton & Co., in order to secure its acceptance, $ 546.31, for the payment for labor and material used upon that part of the road wholly constructed after August 7, 1905, $ 7,912.53, making a total expended by said bondsmen of $ 12,636. There were outstanding claims, for labor and material used, in the sum of $ 302.75. On November 14, 1905, said board of commissioners made an allowance in the sum of $ 3,344 to said Bedgood for W. O. Eaton & Co., under the last agreement, for the construction and completion of three and one-fourth miles of road wholly constructed by said bondsmen after August 7, 1905, which sum was garnisheed in this proceeding, and was ordered paid to the sheriff of Carroll county in response thereto.
It also appears that on March 6, 1905, W. O. Eaton & Co. made an assignment to appellants of all amounts due to said company, or that might become due for work theretofore done, or that might thereafter be done, as collateral to secure $ 500 lent by said appellants to said W. O. Eaton & Co., said assignment being subject to an assignment to Joseph E. Ruffing; that on June 10, 1905, said W. O. Eaton & Co. executed to appellants an order on the auditor of Carroll county for the first $ 2,600 due on an estimate then to be made; that on February 8, 1905, said W. O. Eaton & Co. executed to Joseph E. Ruffing an instrument in writing, whereby they assigned to said Ruffing all their right, title and interest in and to their said contract to said board of commissioners, and authorized said Ruffing to collect from the board of commissioners the sum of $ 1,300; that on November 7, 1905, said assignments were filed as public documents in the auditor's office of said county; that appellees Frey, Frey & Taylor did not have knowledge of the contents of said assignments at the time they entered into the contract with the board of commissioners on August 7, but did have notice that appellants and Ruffing had some claim against W. O. Eaton & Co.
By their pleadings, appellants and appellee Ruffing seek to have the $ 3,344, allowed by the board of commissioners to Frey, Frey & Taylor, that is now in the hands of the sheriff, applied to the liquidation of the various debts owing to them by W. O. Eaton & Co.; while Frey, Frey & Taylor seek to have said sum applied to the payment of debts contracted by them in the construction of the road. The court gave judgment for appellants and appellee Ruffing for the amount of three notes, and adjudged that appellees Frey, Frey & Taylor were entitled to have $ 2,644 of the money in the hands of the sheriff applied to the payment of their claims, and that $ 700 thereof should be applied to the payment of appellants' and appellee Ruffing's claims.
Appellants' complaint is in five paragraphs, based upon promissory notes. In each, the contract of W. O. Eaton & Co. with the board of county commissioners, for the construction of the Madison township gravel road, is set up, the assignment to appellants is averred, and it is alleged that the amount of $ 3,344 in the hands of the commissioners is due on said contract. The prayer is for judgment for the amount of the notes and that said board of commissioners be ordered to pay to appellants on said contract said sum in its possession. Each of said paragraphs also avers that appellees claim some interest in said fund, and they were made parties to answer as to such interest. Appellee Ruffing filed a cross-complaint against his coappellees and appellants, setting up the fact that he was surety for W. O. Eaton & Co. upon the note for $ 1,300 sued upon by appellants; that at the time of the execution of said note W. O. Eaton & Co. assigned to him, to protect him, all their right, title and interest in their contract with the board of commissioners, with authority to collect a sufficient sum on said contract from said board of commissioners, and to apply it to said note; that said W. O. Eaton & Co. were wholly insolvent, and that said assignment was prior in point of time and superior in point of fact to any claim of any of the other appellees. Appellees Frey, Frey & Taylor filed a cross-complaint, making their coappellees and appellants parties defendant thereto. In this cross-complaint, said Frey, Frey & Taylor set up the contract of W. O. Eaton & Co. with the board of commissioners for the construction of said road, their suretyship on the bond for its faithful performance, the abandonment of the work by W. O. Eaton & Co., and the subsequent agreement with the board of commissioners and said Frey, Frey & Taylor for the latter to complete the construction of the road and receive the money due therefor under the contract, and averred that the fund in controversy was for a portion of the road wholly constructed by said bondsmen, and that it was due to them to compensate them for money expended in the construction of said road under said contract. To this cross-complaint appellants filed a demurrer (1) for defect of parties plaintiff, and (2) for want of sufficient facts.
The overruling of these demurrers is assigned as error.
It is urged against the cross-complaint of Frey, Frey & Taylor that there is a defect of parties plaintiff, in that Sheldon S. Eaton and William O. Eaton should have been named as parties plaintiff. William O. and Sheldon S. Eaton comprised the firm of W. O. Eaton & Co. They were the original contractors and principals in the bond in which Frey, Frey & Taylor were sureties. Cross-complainants are seeking to secure the application of the fund to the payment of obligations created by them under a subsequent agreement with the board of commissioners, in which said William O. and Sheldon S. Eaton joined. By this agreement,...
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