Gage v. Road Improvement Dist. No. 3

• Decision Date: 01 May 1922
• Docket Number: (No. 338.)
• Citation: 240 S.W. 427
• Parties: GAGE et al. v. ROAD IMPROVEMENT DIST. NO. 3 OF NEWTON COUNTY.
• Court: Arkansas Supreme Court

240 S.W. 427

GAGE et al. v. ROAD IMPROVEMENT DIST. NO. 3 OF NEWTON COUNTY.

(No. 338.)

Supreme Court of Arkansas.

May 1, 1922.

Appeal from Circuit Court, Newton County; J. M. Shinn, Judge.

Action by Road Improvement District No. 3 of Newton County against W. E. Gage and others. From an order overruling a demurrer, defendants appeal. Reversed and remanded.

Road improvement district No. 3 of Newton county, Ark., for the use and benefit of the Hale Hardware Company and numerous other parties, brought suit in the circuit court against W. E. Gage, Wm. H. Spencer, and the National Surety Company of New York, to recover judgment for the value of materials furnished and labor performed in the construction of a public road, for the improvement of which said road improvement district was organized.

The complaint alleges that W. E. Gage and Wm. H. Spencer were the principal contractors to construct said improved road and that they entered into a contract with said commissioners for the faithful performance of their contract. They also executed a bond with the National Surety Company of New York, as surety to said road improvement district. The bond was conditioned for the faithful performance of the contract of W. E. Gage and Wm. H. Spencer with said road improvement district. The bond also contained a covenant that Gage and Spencer should pay all bills for materials and labor used in the construction of said improved road. A copy of the bond was exhibited with the complaint and made a part of it. A list of creditors, who had furnished materials and performed labor on said road, was attached to the complaint and made a part of it. There were about 72 claimants and the amount due each of them except four of them was less than $100.

The defendants interposed a special demurrer on the ground that the circuit court did not have jurisdiction, because the amounts sued for were due on separate contracts and were for sums below the jurisdiction of the circuit court.

The court overruled the demurrer, and the defendants, refusing to plead further, the court entered judgment in favor of said road improvement district against the defendants for the aggregate amount sued for.

To reverse that judgment, the defendants have duly prosecuted an appeal to this court.

N. B. Maxey, of Muskogee, Okl., and Geo. J. Crump, of Harrison, for appellants.

E. G. Mitchell, of Harrison, for appellee.

HART, J. (after stating the facts as above).

The suit is based upon section 5446 of Crawford & Moses' Digest, which is as follows:

"All contractors shall be required to give bond for the faithful performance of such contracts as may be awarded to them with good and sufficient security in an amount to be fixed by the board of commissioners, and said bond shall contain an additional obligation that such contractor, or contractors, shall promptly make payment to all persons, supplying him, or them, labor and material in the prosecution of work provided for in such contract. Suit may be brought by and in the name of the district upon the bond given to the board. Any person, individual or corporation supplying labor and material shall have the right of action, and shall be authorized to bring suit in the name of the district for his, their, or its use and benefit against said contractor and surety, and to prosecute same to final judgment and...