Employers' Liability Assur. Corp. v. Young County L. Co.

• Decision Date: 01 November 1933
• Docket Number: No. 1444-6106.,1444-6106.
• Citation: 64 S.W.2d 339
• Parties: EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited, v. YOUNG COUNTY LUMBER CO. et al.
• Court: Texas Supreme Court

Page 339

64 S.W.2d 339

EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited, v.YOUNG COUNTY LUMBER CO. et al.

No. 1444-6106.

Commission of Appeals of Texas, Section B.

November 1, 1933.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Suit by the Young County Lumber Company against the Employers' Liability Assurance Corporation, Limited, and others, in which O. F. Ludwell and others intervened. Judgment was rendered for plaintiff and intervener, and defendant named appeals to the Court of Civil Appeals, which certifies questions.

Questions answered.

W. B. Handley, of Dallas, for appellant.

Edwin S. Weldon, of Henderson, S. A. Penix, of Graham, O. M. Wylie, W. E. Forgy, and R. S. Morrison, all of Archer City, J. P. Speer, of Comanche, Okl., and Bullington, Boon, Humphrey & King, of Wichita Falls, for appellees.

SMEDLEY, Judge.

Certified questions are presented by the Court of Civil Appeals for the Second Supreme Judicial District in the following certificate:

"On February 15, 1929, John T. Ables entered into a contract with Archer County by the terms of which he bound himself at his own cost and expense to do all the work necessary for the improvement of what is known as Scotland Lateral Road in said county in accordance with certain specifications attached to the contract, for a total consideration of $89,090.53.To insure the faithful performance of the contract Ables executed a bond with the Employers' Liability Assurance Corporation, Limited, as surety, in accordance with the requirements of article 5160, Rev. Civ. Statutes, as amended by the 41st Legislature in 1929[Vernon'sAnn. Civ. St. art. 5160].

"On March 12, 1929, John T. Ables sublet a part of the work to be done by him to Alderson & Smith, a partnership composed of Wm. Alderson and D. M. Smith, by a contract in writing which bound the subcontractors to perform the same.

"On November 15, 1929, Alderson and Smith executed a bond with the Employers' Liability Assurance Corporation, Limited, for the payment to certain claimants of the amounts therein specified, which recited the amounts owing by the subcontractors to those parties for labor performed and material furnished to them in the performance of the work undertaken by them under the contract with Ables.The bond recites that those claimants had filed their claims with the County Judge of Archer County and that the bond was given to enable the subcontractors to collect from Archer County the amounts due those claimants.The bond further recites that the principals and surety bound themselves to pay to those claimants`the amounts of the liens so claimed by them with all costs, in the event same shall be proven to be liens upon the property against which said obligees assert their liens, namely, the moneys due and to become due John T. Ables under his original contract with Archer County, Texas.'

"The bond further recites that it was given under the provisions of `article 5472c, Rev. Civ.Statutes of 1925, being Act of the 41st Legislature, Regular Session of 1929, page 452, chapter 211[Vernon'sAnn. Civ. St. art. 5472c].'The bond was approved by the County Judge of Archer County on November 21, 1929, and was duly filed and recorded on the same day in the records of Archer County.Upon the filing of the same the county paid over to the subcontractors a sufficient amount to cover all the claims recited.

"On January 27, 1930, John T. Ables, with the Employers' Liability Assurance Corporation, Limited, as surety, gave a like bond in favor of certain other persons who had furnished service and labor in the construction of the road improvements, the names and amounts due each being set out in the bond.The principal and surety bound themselves to pay to the claimants or their assigns the `amounts of their respective claims, or such portion or portions thereof as may be proved to have been levied under the terms of chapter 17, General Laws of the State of Texas, passed by the Regular Session of the 39th Legislature [Vernon'sAnn. Civ. St. arts. 5472a, 5472b], and all court costs adjudged against the principal in actions brought by claimant or claimants hereon.'

"The bond further recites that Ables was executing and filing the same because he desired to file with Archer County, Texas, a bond pursuant to and conditioned as provided by Act of the 41st Legislature, Second Called Session, page 154, chapter 78, now known as article 5472b—1, Rev. Civ. Statutes 1925.And it was filed and approved by the county judge of Archer County on February 12, 1930.After the same was given Archer County paid over to Ables the aggregate amount of all the claims listed in the bond.

"All three of the bonds above mentioned will accompany this certificate.

"The road improvement undertaken by Ables was finished and Archer County made final settlement with him on May 12, 1930.

"This suit was instituted by the Young County Lumber Company against John T. Ables, the contractor, Alderson & Smith, subcontractors, the Employers' Liability Assurance Corporation, Limited, the surety on all of the bonds above mentioned, and Archer County and the County Judge and County Commissioners of said County, to recover the amount due it for material furnished in the construction of said road work undertaken by Ables, aggregating $5,638.30, the claim for which had been listed in the replevin bond executed by the subcontractors noted above, and which the subcontractors and their surety had specifically agreed to pay.O. F. Ludwell, B. J. Frerich, J. E. Duncan, B. O. Bagley, Frank Birkenfeld, J. W. Marriott, R. T. Isabell, Ralph Hoeffner, J. B. Meeks, J. A. McDaniel, W. V. Weinzapfel, Joe Gonzales, F. M. Cross, G. C. Barnett, F. C. Teichman all filed pleas of intervention, seeking to recover amounts due for labor and material furnished to Ables and the subcontractors in the road improvement work, all of whom were made payees in one or the other of the replevin bonds, noted above.

"Upon the trial of the case all of the defendants named in the suit were dismissed by agreement of all the parties save and except the Employers' Liability Assurance Corporation, Limited, and judgment was rendered against it in favor of plaintiff and the interveners for the respective amounts of their claims above noted.From that judgment the surety company has prosecuted this appeal.

"The interventions were all filed within the six months period next succeeding the completion of the work and settlement made by the county with Ables, the contractor, with the exception of J. B. Frerich, whose intervention was filed November 12, 1930, that being the date of expiration of said six months period.

"Plaintiff's original petition was made returnable to the May term, 1930, but the date of filing is not shown in the record.Its first amended original petition, on which the suit was tried, was filed August 4, 1930.

"The surety company filed pleas in abatement of the suit of plaintiff and all of the interveners, based upon the provisions of article 5472b—1, vol. 16, Vernon's Ann. Tex Civ. Statutes, and article 5161, Rev. Statutes of 1925.

"The evidence showed that neither the plaintiff nor any of the interveners ever filed with the county clerk their claims for labor and material as provided in article 5160, vol. 15, Vernon's Ann. Civ. Statutes, and the failure to so file the same was pleaded as a bar to the suit by the plaintiff and also the actions of the interveners named.Another plea filed by appellant was a plea of limitation to the suits upon the replevin bonds by all of the interveners except W. V. Weinzapfel and G. C. Barnett, based on the provisions of article 5472b—1, because those interventions were filed within six months from the date of the filing of said bonds.Interveners Weinzapfel and Barnett were not named as payees of either of said bonds.

"We have been unable to reach any satisfactory conclusion upon the defenses last noted, and we deem it advisable to certify to your Honors the following questions:

"1.Did the trial court err in overruling appellants' pleas in abatement?

"2.Was there error in overruling the defenses of limitation, noted above?

"3.Was the failure of the plaintiff and the interveners to file their claims with the county clerk to be recorded in the mechanic's lien records as required by article 5160, a bar to a recovery on any of the bonds executed by appellant?

"4.Should the replevin bond filed by Ables reciting that it was given under the provisions of article 5472c, which apparently was not applicable to Ables' contract with the county, be construed as though it had been given under the provisions of article 5472b—1, as insisted by appellant?

"5.If by reason of the facts involved and the statutes referred to, the bonds sued on, considered exclusively as statutory obligations, could not support any of the judgments rendered, then were such bonds available to such appellees as common law obligations, in support of the judgments rendered?

"We will note further that in reply to appellant's plea in abatement, appellees call attention to their pleadings embodying allegations to the effect that the contractor abandoned the work before its completion, and that the same was thereafter completed by appellant.And testimony is cited which it is claimed conclusively sustained that plea, and by reason of that fact and the provisions of article 5162, Rev. Civ. Statutes of 1925, their suits on the contractor's bond with the county were not prematurely instituted.However, the record indicates that the trial judge did not pass on that question."

Since the certificate states that the three bonds will accompany it, and they are contained in the statement of facts which, with the transcript, does accompany the certificate, the bonds as appearing in the statement of facts will be treated as a part of the certificate.For convenience the first of the bonds will be referred to as the...