J.B. Mccrary Co. v. Dade County

• Decision Date: 03 November 1920
• Citation: 80 Fla. 652,86 So. 612
• Parties: J. B. McCRARY CO. et al. v. DADE COUNTY for Use and Benefit of E. I. DU PONT DE NEMOURS & CO.
• Court: Florida Supreme Court

86 So. 612

80 Fla. 652

J. B. McCRARY CO. et al. v. DADE COUNTY for Use and Benefit of E. I. DU PONT DE NEMOURS & CO.

Florida Supreme Court

November 3, 1920

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Action by Dade County, for the use and benefit of the E. I. Du Pont de Nemours & Company, against the J. B. McCrary Company and others. Judgment for plaintiffs on a directed verdict, a new trial was denied, and defendants bring error.

Reversed.

(Syllabus by the Court.)

COUNSEL

Shutts, Smith & Bowen, of Miami, and Little Powell, Smith & Goldstein and Arthur G. Powell, all of Atlanta, for plaintiffs in error.

A. J Rose, of Miami, for defendant in error.

OPINION

ELLIS J.

In June, 1918, E. I. Du Pont de Nemours & Co., a corporation brought an action in the circuit court for Dade county in the name of the county, against the J. B. McCrary Company, a corporation, Hartford Accident & Indemnity Company, and J. F. Morgan and E. E. Hill, as partners doing business as J. F. Morgan & Co., to recover the price and value of certain materials furnished by E. I. Du Pont de Nemours & Co. to J. F. Morgan & Co. and used in building a certain road in Dade county. The action was upon the bond and contract made and entered into by J. B. McCrary Company with the Hartford Accident & Indemnity Company as surety on the bond, for the construction of the road; it being alleged that McCrary & Co. had sublet the contract to Morgan & Co.

The allegations of the declaration in substance are: That Dade county entered into a written contract with the J. B. McCrary Company in May, 1916, for the construction by the latter of a public highway in special road and bridge district No. 2 in Dade county, a description of the road being 'set forth in the specifications and profile referred to in the contract as Exhibits 'B and C' and made a part of said contract.' That under the terms of the contract the J. B. McCrary Company agreed to 'furnish all material and other supplies needed, or to be needed in the construction of the road, set forth in said contract and specifications heretofore referred to, and it further covenanted and agreed, among other things, that it would well and truly and promptly pay all just claims for materials and supplies that might be incurred by said contractor in the performance of said work,' to protect and save harmless the said board and special road and bridge district against all claims for materials and supplies due to any person by reason of 'said contractor having been let the contract for the building and construction of said road,' and to execute a surety bond satisfactory to said board in the sum of $120,750 within eight days after signing the contract, and to fully comply with, abide by, and perform all the terms and conditions set forth in the contract, a certified copy of which was attached to the declaration as a part of it and marked 'Exhibit A.' The amount to be paid by the county to the contractor under the contract was $241,500.

It was also alleged that on May 26, 1916, the contractor, J. B. McCrary Company, executed the bond with Hartford Accident & Indemnity Company as surety in pursuance of the contract, the condition of the bond being that the contractor 'should well and truly perform, carry out and abide by all the terms and conditions of said contract, specifications and profile hereinbefore referred to,' etc. A copy of the bond was also attached to the declaration, made a part of it, and marked 'Exhibit B.' It was alleged that the contractor, J. B. McCrary Company, afterwards sublet the contract to J. E. Morgan & Co., who entered upon the construction of the work and agreed with J. B. McCrary Company to carry out the contract and construct the road for the McCrary Company; that the 'plaintiff,' at the request of J. F. Morgan & Co., supplied them with certain material 'necessary for the construction and prosecution of said public highway,' etc.; that the materials were valued at $5,047.50; that the 'said J. F. Morgan & Co. and the J. B. McCrary Company accepted the said supplies and materials so furnished and provided by the plaintiff'; that the contract between the county and McCrary Company is not yet fully performed; that the said claim for material is a 'just claim'; that no part of it has been paid except $500, and the remainder is due and unpaid; that the plaintiff made the affidavit required by chapter 6867, Laws of Florida, and procured from the clerk of the board of commissioners of Dade county, Fla., certified copies of the original contract and bond.

The second, third, and fourth counts of the declaration are common counts for goods bargained and sold, for work done and materials furnished, and account stated.

Chapter 6867, Laws of 1915, is as follows:

'An act to provide that in all bonds taken by the state of Florida, any county of said state, or any city in said state, or any political subdivision thereof, or other public authority, for the performance of a contract for the construction of any public building or the prosecution and completion of any public work, or for repairs upon any public building or public work, there shall be a provision that the contractor or contractors shall promptly make payments to all persons supplying him or them labor and material in the prosecution of the work; and, further providing that suit may be brought in the name of the obligee in said bond for the use and benefit of any person, firm or corporation, who shall have furnished any labor or material, in the prosecution of said work against the contractor and the sureties on said bond to recover the amount due such person, firm, or corporation, on account of the labor, or materials, so furnished.

'Be it enacted by the Legislature of the State of Florida:

'Section 1. That, hereafter, any person, or persons, entering into a formal contract with the state of Florida, any county of said state, or any city in said state, or any political subdivision thereof, or other public authority, for the construction of any public building, or the prosecution and completion of any public work, or for repairs upon any public building, or public work, shall be required, before commencing such work, to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor, or contractors, shall promptly make payments to all persons supplying him, or them, labor and material in the prosecution of the work provided for in such contract; and any person, or persons, making application therefor, and furnishing affidavit to the treasurer of the said state of Florida, or any city, or county, or political subdivisions, or other public authority, having charge of said work, that labor or materials for the prosecution of such work has been supplied by him, or them, and payment for which has not been made, shall be furnished with a certified copy of said contract and bond, upon which, said person, or persons, supplying such labor and materials, shall have a right of action, and shall be authorized to bring suit in the name of the state of Florida, or the city, county, or political subdivision, prosecuting said work for his, or their, use and benefit, against said contractor, and sureties, and to prosecute the same to final judgment and execution; Provided that such action, and its prosecution, shall not involve the state of Florida, any county, city or other political subdivision, in any expense.

'Approved June 5, 1915.'

The condition and obligations of the bond were as follows:

'The condition of the above and foregoing obligation is such, that whereas the J. B. McCrary Company has entered into a contract with the board of county commissioners of Dade county, Florida, for the furnishing of all labor, materials and supplies and the construction of a road in special road and bridge district No. 2 of Dade county, Florida, said road being more particularly described in said contract specifications and profile, and being known as the 'Miami-Marco part of the Tamiami Trail,' in accordance with the terms and conditions set forth in said contract, specifications and profile hereto attached, which said contract, specifications and profile are marked respectively Exhibits 'A,' 'B,' and 'C' and made part of this bond as fully and completely as though said contract, specifications and profile were fully set forth in this bond.

'Now therefore, if the said principal, the J. B. McCrary Company, a corporation as aforesaid, shall well and truly perform, carry out, and abide by all of the terms and conditions of said contract, specifications and profile hereinbefore referred to, and build and complete said road in accordance with the terms and conditions of said contract and specifications hereinbefore referred to, and in a manner satisfactory to the board of county commissioners of Dade county, Florida, then this obligation to be void, else to remain in full force, virtue and effect.'

The defendants J. B. McCrary Company and Hartford Accident &amp Indemnity Company moved the court to require the plaintiff to amend its declaration by alleging whether it seeks to recover in an action of assumpsit or covenant upon the indebtedness against J. F. Morgan & Co., or upon the bond described in the declaration. They also moved to strike the first count upon the ground that it declares upon an instrument under seal in covenant, whereas the praecipe and summons recite that they were issued in assumpsit. They also demurred to the first count upon the grounds that it stated no cause of action against them; that it showed not right in the plaintiff to recover against them on account of the indebtedness due by J. F. Morgan & Co.; that it is vague and indefinite in that...