Chernus v. Kennedy-Coats Const. Co.
| Citation | 55 S.W.2d 744,227 Mo.App. 582 |
| Parties | DAVID A. CHERNUS, DOING BUSINESS AS CHERNUS CONSTRUCTION COMPANY, RESPONDENT, v. KENNEDY-COATS CONSTRUCTION CO. ET AL., UNION INDEMNITY COMPANY, APPELLANT |
| Decision Date | 21 November 1932 |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Cole County.--Hon. W. S. Stilwell Judge.
AFFIRMED (conditionally).
Judgment affirmed.
Mahan Mahan & Fuller for respondent.
Watson Ess, Groner, Barnett & Whittaker for appellant.
This is an action to recover on an indemnity bond.
Plaintiff is a contractor doing business under the name of Chernus Construction Company. The appealing defendant is a corporation organized under the laws of the State of Louisiana, with its home office at New Oreleans in that State and doing business in the State of Missouri as a foreign corporation. The other defendant, the Kennedy-Coats Construction Company, is a partnership consisting of L. J. Kennedy and J. B. Coats, and carrying on a general road-building and contracting business, with headquarters at St. Joseph, Missouri.
The facts of record are that plaintiff had obtained a contract from the Missouri State Highway Commission for the construction of a section of a State highway in Caldwell county, Missouri, near Kingston referred to in the record as Project-Route 13, Sec. 7A. After the contract had been awarded plaintiff furnished an indemnity bond in the required amount with the U.S. Fidelity & Guaranty Company of Baltimore, Md., as surety. Plaintiff sublet the grading work called for by the main contract to the defendant, Kennedy-Coats Construction Company. To guarantee the performance of said sub-contract, defendant Union Indemnity Company executed a common-law bond in the penal sum of $ 30,000, in which the Kennedy-Coats Construction Company was principal, the Union Indemnity Company surety and plaintiff the obligee.
The work called for by the sub-contract and specified in the original contract which was made a part thereof by reference, was completed by the Kennedy-Coats Construction Company and accepted by the State Highway Commissioners. The Kennedy-Coats Company, however, failed to pay certain laborers and materialmen and plaintiff instituted this suit, joining the Kennedy-Coats Construction Company and the Union Indemnity Company as defendants. No pleading was filed by Kennedy or Coats and issue was joined between plaintiff and the Union Indemnity Company. By stipulation, the cause was tried to the court without the aid of a jury, upon the issues made by the pleadings.
The amended petition alleges that claims amounting to $ 7,389.85, itemized therein, are unpaid and asks judgment against the Indemnity Company on account thereof. The record shows a number of the items of said account were eliminated on motion to strike and are not here involved. As to the remaining items, the court, after making certain findings of fact, entered judgment against the defendants in the total sum of $ 2,096.41, which included an attorney's fee of $ 300. Motions for a new trial and in arrest of judgment were overruled and defendant Indemnity Company has appealed.
The petition identifies the parties in relation to the cause of action and states plaintiff obtained from the State Highway Commission, on May 14, 1930, a contract for road work in Division No. 1 of the Highway Department, Caldwell County, Missouri, designated and known as "Route 13, Sec. 7A, 2.239 miles, 30' graded earth, Kingston north and south; bridge at station 403 plus 29.5 over Shoal Creek, 4.45' deck girders, 1 80' truss; at station 461 plus 25 over Log Creek, 3.45' deck girders, 1 110' truss, and that on the 13th day of May, 1930, the Chernus Construction Company entered into a contract with Kennedy-Coats Construction Company whereby the Kennedy-Coats Construction Company agreed to assume or subcontract and perform that part of the work consisting of the following, in conformance with the specifications of the Missouri State Highway Department:
"All grading, furnishing and laying culvert, culvert pipe, riprap, cobblestone, curb and gutter, clearing and grubbing and hedge pulling."
In consideration for said work the Kennedy-Coats Company was to receive the price paid by the Highway Commission under the original contract with Chernus, less five per cent to be retained by Chernus; that a certified copy of the Chernus-Kennedy-Coats contract was annexed to the petition, made a part thereof, and marked Exhibit A; and that this contract was thereafter submitted to the Highway Commission and approved; that on May 19, 1930, the defendant Kennedy-Coats Construction Company entered into the bond above described.
The petition alleges that said bond or contract of indemnity was issued for a valuable consideration and the premium therefor fully paid; that defendants Kennedy-Coats Construction Company, L. J. Kennedy and J. B. Coats failed to indemnify and hold harmless the Chernus Construction Company; that the said defendants failed, neglected and refused to pay for certain articles, commodities, materials and labor used in the doing of said construction work under the contract mentioned; all of said claims having been created by said Kennedy-Coats Construction Company, all of which were necessary to said work, and that demand for payment of said claims was duly made upon the defendant Kennedy-Coats Construction Company, and that thereafter claimants for said amounts duly presented their claims to plaintiffs as original contractors, and that said claimants threatened suit as a result of the refusal of the Kennedy-Coats Construction Company and J. L. Kennedy and J. B. Coats's refusal and failure to pay; and plaintiffs were compelled to pay said amounts, in the following particulars:
The petition further states the following claims, which plaintiff considers lienable and collectible, have been presented but as yet have not been paid:
The petition states the defendants, particularly the Union Indemnity Company, have been notified of said loss sustained by plaintiff and said claims presented to plaintiff by reason of failure of defendants to fulfill their contractual obligations; that defendants and all of them have refused and still refuse to pay any of said claims so listed, or any part thereof. It is alleged that by the laws of this State defendants are liable for all lienable claims created by said defendants in furtherance of the contract mentioned herein; that plaintiff has complied with all the terms and obligations imposed upon him under the terms of said contract of indemnity and bond, but that defendants and particularly the Union Indemnity Company, have neglected, failed and refused to pay any of the claims, or any part thereof, although payment has been demanded; that defendants are liable to plaintiff for all amounts paid by plaintiff in satisfaction of said claims, and in addition thereto, all amounts plaintiff will be compelled by law to pay in satisfaction of said listed claims.
Judgment is asked in "the sum of $ 50,000, the amount named in said bond, to be satisfied, however, by the payment of $ 7,389.85, together with interest thereon from the date of the payment of the claims now paid and together with all costs in this...
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