Bowling v. Julian Const. Co.

• Decision Date: 17 March 1931
• Docket Number: 6890.
• Parties: BOWLING v. JULIAN CONST. CO. et al.
• Court: West Virginia Supreme Court

158 S.E. 165

110 W.Va. 275

BOWLING v. JULIAN CONST. CO. et al.

No. 6890.

Supreme Court of Appeals of West Virginia.

March 17, 1931

Submitted March 10, 1931.

Syllabus by the Court.

Price of foodstuffs furnished employees of road contractor upon latter's order held not within bond securing payment of "wages due or material furnished" contractor (Code 1923, c. 43, § 25).

Under a road contractor's bond wherein the surety is required to "save harmless the State of West Virginia *** for any liability for payment of wages due or material furnished" the contractor, the surety is not liable to a third party for groceries furnished by him to employees in pursuance of an agreement between the contractor and said third party, it not appearing that there were circumstances of necessity, or a contractual undertaking, which required the contra ctor to furnish groceries for his employees.

Road contractor's orders to merchant on basis of which latter furnished groceries to employees held not equitable assignment pro tanto of wages so as to subrogate merchant to employees' rights against surety on contractor's bond (Code 1923, c. 43, § 25).

Orders issued by a contractor to a third party on the basis whereof the latter furnished groceries to employees, where it does not appear that such contractor either through necessity or by contract was required to furnish groceries, do not amount to equitable assignments, pro tanto, of the wages due employees, so as to subrogate the third party to the rights of the employees against the surety, it not being shown that the employees had anything to do with the transaction other than to deliver the orders and receive the groceries.

Appeal from Circuit Court, Raleigh County.

Suit by C. L. Bowling against the Julian Construction Company and others, wherein one Pack intervened. From the decree rendered, the defendant National Surety Company appeals.

Decree reversed in so far as appealed from, and cause remanded.

J. H McGinnis and Fletcher W. Mann, both of Beckley, for appellant.

C. O Dunn, of Beckley, for appellees.

MAXWELL J.

Appellant surety on a road contractor's bond, complains of a decree of the circuit court of Raleigh County fixing liability on the surety for the aggregate of certain orders issued by the contractor to one Pack, a merchant, on the basis of which orders Pack furnished goods and merchandise to employees of the contractor. Pack intervened by petition and is appellee here.

Conditions of the bond required the surety to "save harmless the State of West Virginia from any expense incurred through the failure of said Contractor to complete the work as specified *** or for any liability for payment of wages due or materials furnished said Contractor, and shall well and truly pay all and every person furnishing material or performing labor in and about the construction of said roadway all and every sum or sums of money due him, them, or any of them, for all such labor and materials for which the Contractor is liable."

In the case of Morton Motor Co. v. Casualty Co., 109 W.Va. --, 152 S.E. 860, we held that the purchase price of trucks sold by a dealer to the contractor for use on the construction work contemplated by the bond was not protected by the bond. Both in that case and this one the bond was given in pursuance of section 25, c. 43, Code 1923. In Hicks v. Randich, 106 W.Va. 109, 144 S.E. 887, we held that the bond there involved covered the cost of materials and labor used in the repair of trucks which were employed in the construction work designated in the bond. In that case the contract was awarded by a county court for the construction of a county-district road and the bond was given under the requirements of section 104, c. 43, and section 12, c. 75, Code 1923. Careful distinction between the two cases is made in the opinion in the Morton Motor Company case.

In State ex rel. v. Coda, 103 W.Va. 676, 687, 138 S.E. 324, we held that materialmen who had furnished oil for machinery, and explosives for blasting were protected by the road contractor's bond. The cost of feed for horses and mules employed on a construction job has been held to be protected by the contractor's bond. Carter County v. Oliver-Hill Const. Co., 143 Tenn. 649, 228 S.W. 720; Fidelity & Deposit Co. v. Bailey, 145 Va. 126, 133 S.E. 797; U.S. Fidelity & Guaranty Co. v. Henderson County (Tex. Civ. App.) 253 S.W. 835.

As to the cost of foodstuffs for men employed on a construction job, the weight of authority is that such cost is not within the contractor's bond unless it was necessary for the contractor to furnish such food to his men. The leading case is Brogan v. National Surety Co., 246 U.S. 257, 38 S.Ct. 250, 252, 62 L.Ed. 703, L.R.A. 1918D, 776 (1918) in which Mr. Justice Brandeis, speaking for the court, held "The bare fact that the supplies were furnished to the contractor and were consumed by workmen in its employ would have been immaterial. A boarding house might be conducted by the contractor (like some company stores concerning which states have legislated, Keokee Coke Co. v. Taylor, 234 U.S. 224, 34 S.Ct. 856, 58 L.Ed. 1288) as an independent enterprise undertaken solely in order to utilize the opportunity for separate and additional profit afforded by the congregation of many laborers in the particular locality where the public work is being performed. The laborers might resort to such a boarding house in the exercise of individual choice in the selection of an eating place. Under such circumstances the furnishing of supplies would clearly be a matter...