Lincoln County v. Du Pont De Nemours & Co.
| Decision Date | 05 November 1930 |
| Docket Number | No. 20869.,20869. |
| Court | Missouri Court of Appeals |
| Parties | LINCOLN COUNTY, MISSOURI, v. E.I. DU PONT DE NEMOURS & COMPANY, INC., A CORPORATION; NATIONAL SURETY COMPANY OF NEW YORK, A CORPORATION; THE BANK OF OLD MONROE, A CORPORATION, DEFENDANTS, NATIONAL SURETY COMPANY OF NEW YORK, A CORPORATION (INTERPLEADER), APPELLANT; BANK OF OLD MONROE, A CORPORATION (INTERPLEADER), APPELLANT. |
Appeal from the Circuit Court of Lincoln County. — Hon. Edgar B. Woolfolk, Judge.
AFFIRMED.
Howell & Jackson for appellant National Surety Company of New York.
(1) Hauling of crushed rock in automobile trucks, which said crushed rock was used in surfacing a public road or highway, is labor within the meaning, and intent of section 1040, Revised Statutes 1919, and as such labor is fully covered and protected by the terms and provisions of a surety bond executed in compliance with said section. State ex rel. and to use of Winebrenner v. Detroit Fidelity & Surety Co., 300 S.W. 833; Mabie v. Sines, 92 Mich. 545, 52 N.W. 1007; Hale v. Brown, 59 N.H. 551; Watson v. Watson Mfg. Co., 30 N.J. Eq. 558; Multnomah County v. U.S.F. & G. Co., 87 Ore. 198, 170 Pac. 525; Multnomah County v. U.S.F. & G. Co., 92 Ore. 146, 180 Pac. 104; Hogan v. Cushing et al. Imp. Co., 49 Wis. 169; Chicago & N.E.R.R. v. Sturgis, 44 Mich. 538; City Trust, S.B. & Surety Co. v. United States, 77 C.C.A. 397, 147 Fed. 155, (2) Under a contract with a county to construct a public road or highway, a surety, who has paid the claim of a laborer or subcontractor against its principal (the contractor), for the hauling of crushed rock used in the construction of said public road or highway, is entitled to be and is subrogated to all of the rights of the laborer or subcontractor to moneys retained by the county, under the terms of the contract, until said road or highway is completed and all claims for labor performed or material furnished are fully paid and settled for, and such right of subrogation is superior to any claims to said moneys acquired by a bank, under an assignment made to it by the contractor for moneys loaned to such contractor, even though the money loaned went into the work being done in the construction of said public road or highway. Massachusetts Bonding & Insurance Co. v. Ripley County Bank, 208 Mo. App. 560; Harris v. Taylor et al., 129 S.W. 995; Ray Co. Savings Bank v. Cramer, 54 Mo. App. l.c. 593; Prairie State Bank v. United States, 164 U.S. 227; Hinningson v. U.S.F. & G. Co., 208 U.S. 404; Hardaway v. National Surety Co., 211 U.S. 552; Maryland Casualty Co. v. City of Cincinnati, 291 Fed. 825; 25 Ruling Case Law, p. 1383, sec. 65. (3) Under the provisions of section 1040, Revised Statutes 1919, and a bond executed in conformity therewith, a subcontractor performing or furnishing labor is as fully protected in his claim for labor performed as an individual. Mo. State Highway Commission ex rel. and to use of Licking State Bank v. Coopers Const. Service Co. et al., 286 S.W. 736; State v. Southern Surety Co., 294 S.W. 123; Sec. 1040, R.S. 1919; Board of Education v. United States Fidelity & G. Co., 149 S.W. l.c. 49.
B.H. Dyer for appellant Bank of Old Monroe.
(1) Judgments are binding only upon those who are parties thereto, or who are in privity with the parties thereto. Womach v. City of St. Joseph, 201 Mo. 467; Bennett v. Ins. Co., 255 S.W. 1076; Russell v. Grant, 122 Mo. 161; Rieschick v. Klinghaefer, 91 Mo. App. 430; Fenn v. Dugdale, 31 Mo. 580; 15 Ruling Case Law, p. 1005, sec. 481, "Judgments;" 34 Corpus Juris 984, Article "Judgments," sec. 1405. (2) The rights of a person who is not a party to a suit, nor in privity with a party, are not affected by the judgment rendered therein: as between him and a party to the action, their rights are to be determined as if the judgment had never been determined. Luther v. Kinion, 200 Mo. App. 159; Luther v. Kinion, 233 S.W. 501; 34 Corpus Juris 1043, article "Judgments," sec. 1480; 15 Ruling Case Law, 1005, sec. 481, "Judgments." (3) Privity denotes mutual or successive relationship to the same right of property. 15 Ruling Case Law, p. 1015, sec. 488; Womach v. City of St. Joseph, 201 Mo. 467. (4) Equity does not come to the assistance of one who has an adequate and complete remedy at law. Bennett v. Crane, 220 Mo. App. 607, 289 S.W. 26; Stone v. City of Jefferson, 293 S.W. 780; Somerville v. Somerville, 210 Mo. 567; Benton County v. Morgan, 163 Mo. 661; Humphrey v. Milling Co., 98 Mo. 542. (5) No one is entitled to the aid of a court of equity when that aid becomes necessary through his own fault. Goodrich Rubber Co. v. Bennett, 281 S.W. 75.
G.C. Huston and D.E. Williams for respondent.
This is a consolidated case of cross-appeals in an action of interpleader between the National Surety Company of New York, a corporation, and the Bank of Old Monroe, a corporation, for certain funds retained by the county court of Lincoln county, Missouri, out of moneys due one J.F. Murphy on account of the construction of a public road. Upon trial of the case below a decree was entered awarding part of the fund to each of said interpleaders, and each interpleader in due course appeals.
It appears that on May 4, 1922, one J.F. Murphy entered into a contract with Lincoln county, Missouri, to construct, at his own cost and expense, a certain public road in Lincoln county, Missouri, known and designated as Lincoln County Bond Project No. 15-A; that it was provided in said contract that the said Murphy would do all the work required, and furnish and pay for all labor employed and material used in the construction of said public road; that said contract further provided that Lincoln county, Missouri, should retain out of the moneys due the said Murphy, on account of the construction of said public road, the sum of fifteen per cent out of each monthly estimate until the said public road was completed, and the said Murphy had furnished the county court with satisfactory evidence that he had paid and settled for all material furnished and labor performed in and about the construction of said public road; that on the 11th day of May, 1922, the said Murphy, as principal, and the defendant (interpleader) National Surety Company of New York, as surety, made, executed and delivered to Lincoln county, Missouri, their bond in the penal sum of five thousand dollars, conditioned, among other things, that "if the said J.F. Murphy should, in all things, well and truly perform all the terms and conditions of the aforesaid contract, and pay all lawful claims for materials furnished or labor performed in the construction of said highway, then this obligation to be void, otherwise to remain in full force and effect," as provided by section 1040, Revised Statutes 1919; that on the 24th day of June, 1922, the said Murphy did, by his contract in writing, for moneys advanced and loaned him by the defendant, Bank of Old Monroe, assign, transfer and set over to the defendant, Bank of Old Monroe, all warrants representing payments for construction of said highway and authorized the county court of Lincoln county, Missouri, to pay to defendant, Bank of Old Monroe, any and all moneys due the said Murphy on account of the construction of said highway; that the said assignment was delivered to the county court of Lincoln county, Missouri, and by them approved by an entry of record, and that thereafter all payments due the said Murphy were made to the defendant bank, except the fifteen per cent in controversy in this suit; that the said Lincoln county, Missouri, did retain said fifteen per cent out of the moneys due the said Murphy in accordance with the terms of the contract and that said moneys so retained amounted to the sum of $2788.43; that the said Murphy defaulted on said bond and failed to pay for all labor performed and material furnished in the construction of said highway, and the county court of Lincoln county, Missouri, refused to pay the said Murphy the said fifteen per cent of the contract price retained by it and filed its interplea which was allowed, and in accordance with the order of the court allowing said interplea, the defendant, National Surety Company of New York, and the defendant, Bank of Old Monroe, duly filed their interpleas herein.
The defendant, National Surety Company of New York, filed its interplea, setting up its demand and claim to this fund, alleging that Murphy failed to pay and discharge all lawful claims for materials furnished and labor performed in the construction of said public road, and that by reason thereof certain judgments were recovered against it, the said National Surety Company of New York, on said bond, and that it had paid said judgments. It alleges that such judgments were obtained against it by E.I. du Pont de Nemours & Company, Incorporated, for $328.47; James J. Connaughton, et al., for $105.58; Bangert Brothers Drayage Company for $1468.10, and that it paid $78.60 on account of costs incurred in connection with these judgments. It further alleges that in full satisfaction of claims for materials furnished to the said J.F. Murphy and used in the construction of said public road, it paid Schacker Mercantile Company $30.78, and $36.56 to H.A. Rechamp. It is then alleged that it thereby became subrogated to the rights of Murphy in the fund, and asks for judgment for $2648.34, the aggregate amount of all these several judgments, claims and costs.
The interpleader, Bank of Old Monroe, by its interplea, makes claim to the fund by reason of the asignment to it made by Murphy.
The National Surety Company filed its answer to the interplea of Bank of Old Monroe, the same being in its nature a general denial.
The Bank of Old Monroe filed its reply to the interplea of the National Surety Company — a general denial — and then alleging that at the time said Surety Company executed the bond in question it took from Murphy an assignment in writing...
To continue reading
Request your trial