C. H. Leavell & Co. v. Doster

Citation233 So.2d 775
Decision Date23 March 1970
Docket NumberNo. 45715,45715
PartiesC. H. LEAVELL AND COMPANY and Peter Kiewit Sons' Company v. J. V. DOSTER, d/b/a Central Gulf Construction Co.
CourtUnited States State Supreme Court of Mississippi

Daniel, Coker, Horton & Bell, L. F. Sams, Jr., Jackson, for appellants.

Davidson & Beach, Jackson, Bryant & Stennis, Gulfport, for appellee.

GILLESPIE, Presiding Justice.

This is an appeal by the plaintiff from an adverse judgment in a suit for contractual indemnity. The suit was filed in the Circuit Court of Hinds County and was tried before the judge without a jury. We hold that the judgment of the trial court was correct and is, therefore, affirmed.

C. H. Leavell & Company and Peter Kiewit Sons' Company (hereinafter Prime Contractor) as joint venturers entered into a contract with the United States Government for the construction of certain facilities at the NASA Test Facility in Mississippi for a consideration of thirteen million dollars. On December 16, 1963, Prime Contractor entered into a subcontract with J. V. Doster, doing business as Central Gulf Construction Company (hereinafter Doster), for that portion of the prime contract involving the excavation of 1,928,100 cubic yards of dirt for a consideration of in excess of one million dollars. The subcontract required Doster to perform the excavation in accordance with the contract, to enforce certain safety rules, to carry workmen's compensation and public liability insurance, and to indemnify Prime Contractor from liability resulting from Doster's negligence. The contract also provided that Doster would secure a performance and payment bond on a form furnished by Prime Contractor within three days after the execution of the subcontract 'and in any event prior to the start of operations at the project site.' Since Doster had not furnished the bond, a supplemental agreement was entered into December 31, 1963, between Prime Contractor, Doster and GOMAC, the latter being a firm engaged in the rental of the heavy dirt-moving equipment necessary for the performance of the subcontract. This agreement provided that in the event Doster remained unable to furnish the performance bond by January 15, 1964, the Prime Contractor,

'* * * shall have the right to take over the subcontract and the performance thereof on the following terms and conditions:

1. GOMAC agrees to make initial shipment of equipment required for performance of the subcontract, as specified therein, on January 6, 1964, to complete the shipment of all such equipment by January 31, 1964, and to leave the equipment on the job until completion of the subcontract work, or until released by CONTRACTOR. As rental for the use of such equipment, CONTRACTOR will pay to GOMAC monthly the sum of 11cents per cubic yard of material removed during the preceding month, as shown by the certified Corps of Engineers payment estimate for such preceding month.

2. A separate set of books and accounts will be kept for the subcontract work, and the subcontract will be charged only with the direct costs (including the equipment rentals as hereinabove provided) required for its performance in accordance with the terms and conditions thereof.

3. After payment of the direct costs, as provided above, and upon completion and final acceptance of the subcontract work by the OWNER, any funds remaining under the subcontract will be paid and applied as follows and in the following order:

(a) First, if subcontract funds are still available, GOMAC will receive an additional payment up to, but not exceeding, 7cents per cubic yard of material.

(b) Second, if subcontract funds are still available, LEAVELL-KIEWIT will receive 2cents per cubic yard of material for management services.

(c) Lastly, if further funds are available, the balance thereof will be paid to DOSTER.

In each case, the cubic yards of material will be as shown on certified Corps of Engineers payment estimates.

However, if, upon completion and final acceptance of the subcontract work by the OWNER, the total direct costs (including the equipment rentals, at 11cents per cubic yard) exceed the total subcontract price, then DOSTER, his heirs, personal representatives, or authorized assigns, shall be liable to CONTRACTOR for the amount of such excess.

4. CONTRACTOR shall have full and complete authority and discretion in the performance of the work and the utilization of labor and materials, and CONTRACTOR'S good faith judgment as to the proper conduct of the work, cost of materials, labor, transportation, equipment expense, rentals thereon, supplies, services, insurance, taxes, appliances, tools, utilities, power, and other direct costs will be...

To continue reading

Request your trial
2 cases
  • Biggart v. Texas Eastern Transmission Corp.
    • United States
    • Mississippi Supreme Court
    • April 27, 1970
    ...636 (1939); Texas Co. v. Mills, 171 Miss. 231, 156 So. 866 (1934); Cf. C. H. Leavell and Company and Peter Kiewit Sons' Company v. J. V. Doster, d/b/a Central Gulf Construction Co., 233 So.2d 775 (Miss., March 23, 1970). Since Jatt O. Biggart, deceased, was an employee of Texas Eastern and ......
  • Ray v. Babcock & Wilcox Co., Inc.
    • United States
    • Mississippi Supreme Court
    • September 24, 1980
    ...So. 636 (1939); Texas Co. v. Mills, 171 Miss. 231, 156 So. 866 (1934); Cf. C. H. Leavell and Company and Peter Kiewit Sons' Company v. J. V. Doster, d/b/a Central Gulf Construction Co., 233 So.2d 775 (Miss.1970). Since Jatt O. Biggart, deceased, was an employee of Texas Eastern and Brown & ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT