Catron v. Norton Hardware Co

• Citation: 96 S.E. 853
• Court: Supreme Court of Virginia
• Decision Date: 19 September 1918
• Parties: CATRON. v. NORTON HARDWARE CO. SAME . v. A. L. P. CORDER & CO.

96 S.E. 853

CATRON.

v.NORTON HARDWARE CO.

SAME .

v.A. L. P. CORDER & CO.

Supreme Court of Appeals of Virginia.

Sept. 19, 1918.

Appeal from Circuit Court, Wise County. Two bills by the Norton Hardware Company and A. L. P. Corder & Co. against J. H Catron and another. From the decree in each case, Catron appeals. Affirmed.

E. M. Fulton, of Wise, for appellant.

Bond & Bruce and Vicars & Peery, all of Wise, for appellees.

BURKS, J. These two cases were attachments in equity and were heard together in the trial court.

J. H. Catron had contracted with the county of Wise to construct a number of miles of public road, and the contract contained the following provision:

"It is agreed as a part of this contract that if at any time or times any claim or claims shall be made to the party of the second part by a subcontractor or laborer or other person for any money due for any work, labor or material done upon or supplied upon the work herein contracted for, done for, furnished or supplied to the party of the first part, that the party of the second part may retain a sufficient amount to pay the same, when said claim shall thereafter be established in court, and such amount is hereby assigned to said party of the second part to pay such claim or claims, such payments to be made when so established."

It is claimed that Carrier was a subcontractor under Catron for three miles of this road, that he is largely indebted to the complainants, that he is a nonresident, that Catron is indebted to Carrier, that the debts due the complainants are claims such as are provided for in the contract between Catron and Wise county, and that the county is indebted to Catron under his contract aforesaid. Carrier, Catron, and Wise county are made defendants.

The record is in some respects incomplete. No attachment or order to attach appears anywhere in the record, and, if the county of Wise entered any appearance at all, the record does not disclose the fact. There was a demurrer to the bill in each case, which was overruled. The Corder case was referred to a master to make certain inquiries. He made his report to which it is said exceptions were filed, but there are no exceptions in the record. No order of reference was made in the other case, though the inquiries were as pertinent in the one case as the other. This, however, is immaterial, as the court could have gotten the facts from the record.

The cases were heard together, and there was a separate decree in favor of each complainant for the amount of his debt against Catron and Wise county, but no decree against Carrier. It is presumed that Carrier was proceeded against as a nonresident, but the record is silent on the subject. He appeared in the state and was examined as a witness for the complainants and was cross-examined at length, and there was ample opportunity to serve process on him. He was in effect, by his testimony, prosecuting the cases against Catron.

The errors assigned are the overruling ofthe demurrer and the lack of evidence to support the decree. The ground of the demurrer was multifariousness because the county of Wise was made a defendant. The county of Wise was made a defendant simply as a garnishee, and under the allegations of the bill was a proper party. The demurrer therefore was. properly overruled.

Whether the decrees were right on the merits cannot be ascertained from the record. On July 10, 1913, Catron prepared a writing which is signed by Carrier but not by Catron, from which it appears that Catron sublet to Carrier miles 5, 6, and 7 for construction, on certain terms therein set forth. This writing contains the following provision:

"Carrier is to begin work on the —— day of Aug. and contract is to be drawn later to conform with the contract that said Catron is under with Co. Supervisors."

Catron explains that this was a mere memorandum to show that Carrier was to be allowed to get those miles for construction. Although the writing stated that Carrier was to "begin work on the ——day of Aug., " he actually began work shortly after the date of the writing, probably about July 15th or 16th. On July 18, 1913, the formal contract in writing was prepared and executed by Catron and Carrier. At that time it was expected that a third person would unite with Carrier in the contract for the work, and a blank is left for his name throughout the contract. This contract contains the following provision as to a bond to be executed by Carrier and his associate:

"Now in order to insure the faithful performance of each and every condition and stipulation and requirement made by this contract and to indemnify and save harmless said J. E. Catron, from any and all damages either directly or indirectly arising out of any failure to perform the same the party of the first part is to execute and deliver herewith a bond in the penalty of six thousand dollars ($6,000.00) conditioned for such faithful performance of such conditions stipulations and requirements with surety or sureties satisfactory to the said J. H. Catron. The further stipulations in contract between the board of supervisors of Wise county, Va., and John H. Catron, as heretofore mentioned and made a part as aforesaid of this contract and are agreed and assented to by both the parties hereto a copy of said contract proposals specifications and &c will be procured and attached hereto and made a part hereof."

The record shows that Catron insisted on the bond, and that an unsuccessful effort was made by Carrier and his intended associate to give it. This situation continued about 30 days. During this time Carrier was at work on the road with a force of 25 hands and equipment and tools and did work which, if charged at the contract price...