Hilton v. Universal Const. Co.

• Decision Date: 02 December 1919
• Docket Number: No. 16665.,16665.
• Parties: HILTON (SUBURBAN SUPPLY CO. et al., Interveners) v. UNIVERSAL CONST. CO. et al.
• Court: Missouri Court of Appeals

216 S.W. 1034

202 Mo. App. 672

HILTON (SUBURBAN SUPPLY CO. et al., Interveners) v. UNIVERSAL CONST. CO. et al.

No. 16665.

St. Louis Court of Appeals. Missouri.

December 2, 1919.

Rehearing Denied January 6, 1920.

Appeal from St. Louis Circuit Court; W. M. Kinsey, Judge.

Suit by R. L. Hilton against the Universal Construction Company and another, wherein the Suburban Supply Company and others intervened. From a judgment for interveners, defendant named appeals. Affirmed.

See, also, 212 S. W. 867.

Kinealy & Kinealy, of St. Louis, for appellant.

John B. Denvir, of St. Louis, for respondents.

BIGGS, C.

This is a suit in the nature of an equitable garnishment against the Universal Construction Company and the City of St. Louis for materials sold to a subcontractor of a prime contractor for public work. The suit was instituted in behalf of the Hunkins-Wilkins Lime & Cement Company and R. L. Hilton, alleging that the city entered into a contract with the defendant Universal Construction Company for the construction of a public sewer, which contract provided that the city should pay for same on monthly estimates of the amount of work performed and should retain 15 per cent. until the completion of the work; that the plaintiffs furnished materials to a subcontractor on the work, J. W. Farley & Co., and to their trustee, they having afterwards been declared a bankrupt. The prayer of the petition was for an order on the city to pay out of the retained percentage in its possession the amount due the plaintiffs, the sewer having been completed.

The suit as to the original plaintiffs was afterwards dismissed on their applications, and they were permitted to withdraw; their claims having been paid and discharged. In the meantime, however, intervening petitions were filed in the suit in behalf of the Suburban Supply Company, the Lorimer & Gallagher Company, and Lumaghi Coal Company.

In their intervening petitions the Suburban Supply Company and the Lumaghi Coal Company repeat substantially the allegations contained in the plaintiffs' petition, and allege that they had furnished to the subcontractor, Farley & Co., coal which was used by said Farley & Co. for the construction of said sewer, and that their claims against said subcontractor remain unpaid; the Suburban Supply Company alleging that there was due to it $425.74, and the Lumaghi Coal Company alleging that the value of the coal furnished by it was $822.06.

The Lorimer & Gallagher Company by its intervening petition repeat substantially the allegations of the plaintiffs' petition, and alleges that it furnished material in the shape of lumber to the subcontractor on said sewer of the reasonable value of $359.63, which lumber was used in the construction of said sewer, and which sum remains due and unpaid.

All of these interveners pray for an order on the city to pay to them out of the fund in the city's possession belonging to the Universal Construction Company the amounts claimed in their respective intervening petitions.

The defendant, Universal Construction Company, denied generally the allegations of the intervening petitions.

The cause, upon motion of the plaintiffs, was referred to a referee, who, after hearing the evidence, filed a report recommending that as to the claims of the Suburban Supply Company and Lumaghi Coal Company a judgment be rendered in favor of the defendants, and as to the claim of Lorimer & Gallagher Company for furnishing the lumber it was recommended that a judgment be rendered in favor of intervener Lorimer & Gallagher Company in the sum of $358, being the reasonable value of the lumber furnished, and that the same be paid out of the money in the hands of the city of St. Louis.

On exceptions being duly filed to the referee's report, the circuit court overruled the exception filed by the defendant, Universal Construction Company, to that part of the report recommending judgment in favor of Lorimer & Gallagher Company, and sustained the exceptions filed on behalf of the Suburban Supply Company and the Lumaghi Coal Company, and thereupon entered judgment in behalf of these interveners for the amounts reported by the referee, being the reasonable value of the materials furnished as found by him, and ordered that the interveners be paid their respective claims out of the fund adjudged to be due Universal Construction Company from the city of St. Louis.

After taking the customary steps, the defendant, Universal Construction Company, appealed the cause to the Supreme Court. That court transferred the cause to this court, holding that the amount involved was within our jurisdiction, and that the city was a mere nominal party and did not appeal. Hilton et al. v. Universal Const. Co. et al., not yet officially reported, but see 212 S. W. 867.

The contract under which the work was let is a combination contract and bond between the Universal Construction Company, the city of St. Louis, and the Fidelty & Deposit Company, which signed as security for the faithful performance of the contract on the part of the Universal Construction Company. By this contract and bond it is provided that, if the contractor shall fail to pay the laborers employed on the work or to pay for materials used therein, the sewer commissioner may withhold his certificate for everything in excess of 85 per cent. of the value of the work done until he shall be satisfied that all claims for labor or materials are paid. In I addition, the said contract and bond provides that the Universal Construction Company shall pay the proper parties all "amounts duel for material and labor used and employed in the performance thereof."

There is little dispute in the record as to the essential facts. As to the coal claims of the Suburban Supply Company and Lumaghi Coal Company, it appears from the record that this coal was furnished and delivered by the interveners to a subcontractor, Farley & Co., and was used by the said subcontractor for making steam in locomotives drawing small cars, carrying materials used in and about the sewer in question, upon a track running from one end of the sewer to the ether, and also for carrying dirt along the side of the sewer as the dirt was taken from the trench, which dirt was taken out of the trench with a steam shovel and dumped onto the cars, which cars were moved from one place to another, along the sewer; that is, the dirt was...