Linde Air Products Co. v. American Surety Co

• Decision Date: 29 January 1934
• Docket Number: 30984
• Citation: 168 Miss. 877,152 So. 292
• Court: Mississippi Supreme Court
• Parties: LINDE AIR PRODUCTS CO. et al. v. AMERICAN SURETY CO

152 So. 292

168 Miss. 877

LINDE AIR PRODUCTS CO. et al. v. AMERICAN SURETY CO

No. 30984

Supreme Court of Mississippi

January 29, 1934

Division A

Suggestion Of Error Overruled February 26, 1934.

APPEAL from chancery court of Forrest county, HON. T. PRICE DALE Chancellor.

Proceeding in chancery by the Linde Air Products Company and others against the American Surety Company. From a decree partly adverse to complainants, complainants appeal. Reversed and rendered.

Decree reversed and rendered.

Howie & Howie, of Jackson, for appellants.

The court is not dealing with the narrow construction placed upon bonds furnished in accordance with the statute, but is construing a contract of suretyship entered into private persons providing obligations and liabilities voluntarily assumed by the surety. The obligation was that the contractor (Bob Halle Construction Company) "shall pay all persons firms and corporations who perform labor or furnish equipment, supplies and materials for use in the work under the contract."

The word "equip" means "to furnish for service, or against a need of exigency; to fit out; to supply with whatever is necessary to efficient action in any way."

Landau v. Sykes, 54 So. 3, 98 Miss. 495; Royal Indemnity Co. v. Day & Maddock Co., 150 N.E. 426, 44 A. L. R. 374.

The ordinary meaning of the term "supplies" in its general and accepted use is such as to include goods, wares and merchandise of almost every kind and nature, whether used in the household or on the farm, or in any sort of productive or constructive work requiring the labor or service of men or animals or machinery.

Bricker v. Rollins & Jarecki, 173 P. 592; Building Supplies Corp. v. Willcox, 284 F. 113; U. S. Rubber Co. v. Washington Engineering Co., 149 P. 706; Hurley-Mason v. American Bonding Co., 140 P. 575; McElrath & Rogers v. Kimmons & Sons, 112 So. 164, 146 Miss. 775.

All persons who performed labor, furnished equipment, materials and supplies for use in the contract are protected by the terms of the bond and the American Surety Company is liable for these items.

Anderson Lbr. Co. v. National Surety Co., 207 N.E. 53; Maryland Casualty Co. v. Ohio River Gravel Co., 20 F.2d 514, C. C. A. 4th; French v. Powell, 68 P. 92; American Surety Co. v. Lawrenceville Cement Co., 110 F. 717; Fidelity & Deposit Co. v. Charles Hegewald Co., 139 S.W. 975; Columbia County v. Consolidated Contract Co., 163 P. 438; Miller v. American Bonding Co., 158 N.W. 432; Hicks v. Randich, 144 S.E. 887; Western Material Co. v. Enke, 228 N.W. 385; Tway v. Thompson, 16 P.2d 76; West v. Detroit Fidelity & Surety Co., 225 N.W. 672; Rossman v. Bankers Surety Co., 148 N.W. 454; Standard Oil Co. v. Nat. Surety Co., 107 So. 559, 143 Miss. 841; Standard Acc. Ins. Co. v. Dodd, 142 So. 574.

Sureties for hire are not wards of the court to be shielded from heedlessness or folly. They must abide by their contracts and pay everything which by fair intendment can be charged against them. They act, not to accommodate others, but to promote their own interests, and are to be judged accordingly.

C. S. Luck & Sons v. Boatwright, 162 S.E. 53.

Flowers, Brown & Hester, of Jackson, for appellee.

We do not consider that the bond in this case enlarges on the statute. It is true the bond mentions equipment and supplies in addition to labor and materials, but the condition is that the surety will pay for labor performed or equipment, supplies and materials furnished for use in the work under the contract. The contract in this case was to construct a pipe line.

McElrath & Rogers v. Kimmons & Sons, 112 So. 164, 146 Miss. 775; U. S. F. & G. Co. v. Yazoo County, 110 So. 780, 145 Miss. 378.

We think the questions involved in this case are determined by decisions of our own court. Counsel for appellants cite in their brief many cases from other jurisdictions. We do not think these cases are in point on the questions here involved.

If the items contended for by counsel are the subjects of mechanics and materialmens liens under our statutes, then we are liable for them under our bond; but, if they are not, then we are not liable.

The bond in the case before the court only obligated the surety to pay for supplies, materials and equipment that became a part of the construction.

McMillan v. Casey Co., 143 N.E. 468; Chamberlain et al. v. City of Lewiston et al., 129 P. 1069; Ninneman et al. v. City of Lewiston, 129 P. 1073; Gilber Hunt Co. v. Perry, 110 P. 541; Johnson v. Starrett, L. R. A. 1915B, 708; U. S. Rubber Co. v. American Bonding Co. et al., L. R. A. 1915F 951.

In an action to enforce liens, materials used by a contractor as mere appliances, tools or equipment, and which may be used again in the construction of other buildings or structures, are not materials for which a lien can be enforced.

Webb v. Lee, 194 N.W. 155, 181 Wis. 39; McMillan v. Casey Co., 143 N.W. 468, 311 Ill. 584; Crowell Lbr. & Grain Co. v. Tyan Co., 193 N.W. 609, 110 Neb. 225; Hoffman Lbr. Co. v. Gribson, 119 A. 741.

Argued orally by W. B. Fontaine and J. H. Howie, for appellant, and by Clyde Hester, for appellee.

OPINION

Smith, C. J.

This is a proceeding in chancery by several complainants on a contractor's surety bond to recover for material and equipment furnished the contractor for use in carrying out his contract. The contract was for the construction of a gas pipe line from Jackson to Hattiesburg. The bond contains a number of conditions, among which is "that if the said contractor shall pay all persons, firms and corporations who perform labor or furnish equipment, supplies and materials for use in the work under the contract . . . this obligation shall be void; otherwise to remain in full force and effect." The court below awarded a recovery on the bond for supplies and materials furnished the contractor that went into or were consumed in the construction of the pipe line, but refused a recovery for repairs to, and new parts for, the contractor's equipment, and for new equipment furnished the contractor with which to do the work for which he had contracted.

The services rendered and materials furnished the contractor for which a recovery was not allowed were not such as the mechanic's lien statute award a lien therefor on the pipe line when constructed, or in any way obligates the owner of the pipe line to pay therefor. Were the word "equipment" not in the bond, it would not, under prior decisions of this court, cover these disputed items.

The appellee's contentions are: First, that the bond is a statutory substitute for a mechanic's and materialman's lien, and therefore covers only such supplies and materials as are within such a lien; if mistaken in this, second, that under the statute the bond, however worded, covers only labor...