London & Lancashire Indem. Co. of Am. v. State

• Decision Date: 09 July 1927
• Docket Number: No. 24.,24.
• Citation: 138 A. 231
• Parties: LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA v. STATE, for Use of INTERNATIONAL HARVESTER CO. OF AMERICA.
• Court: Maryland Court of Appeals

138 A. 231

LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA

v. STATE, for Use of INTERNATIONAL HARVESTER CO. OF AMERICA.

No. 24.

Court of Appeals of Maryland.

July 9, 1927.

Appeal from Superior Court of Baltimore City; Walter I. Dawkins, Judge.

"To be officially reported."

Action by the State for the Use of the International Harvester Company of America, assignee of Frank R. Hammond, against the London & Lancashire Indemnity Company of America. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before BOND, C. J., and URNER, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

William R. Semans and Forrest Bramble, both of Baltimore, for appellant.

John H. Hessey, of Baltimore (George W. S. Musgrave, of Baltimore, on the brief), for appellee.

SLOAN, J. This is an appeal from the superior court of Baltimore on a judgment in favor of the appellee, the only exception being to the granting of the appellee's two prayers and to the rejection of the appellant's five prayers. A contract was entered into by the state of Maryland, through the state roads commission, and the Patapsco Engineering & Contracting Company, of Baltimore city, for the improvement by the latter of 1.31 miles of road in Montgomery county, near Washington, D. C. On the same day the contractor, as principal, gave its bond, with the appellant as surety, whereby it was stipulated that the contractor "shall well and truly pay all and every person furnishing material, or performing labor in and about the construction of said roadway, all and every sum or sums of money due him, them, or any of them, for such labor and materials for which the contractor is liable." In pursuance of its contract the contractor bought the sand and gravel from the Smoot Sand & Gravel Company, whose yard was at Washington, D. C., and in order to get the sand and gravel where it was required on the work, the contractor engaged Frank R. Hammond to haul the same by his trucks and his employees from the Smoot yards to the road, under contract, and there dump it at the places designated by the contractor's foremen. For this service the contractor agreed to pay Hammond 80 cents per ton. In addition to this, Hammond was also engaged to transport forms and material from point to point on the job, for which he was to receive $2.50 per hour.

It is provided by chapter 721 of the Acts of 1910, now section 30, art. 91, of the Code of 1924, that "In no case shall any such bond be approved or accepted unless the obligators bind themselves therein to the payment of all just debts for labor and materials incurred by the bidder in the construction and improvement of the road contracted for," which was declared valid in American Fidelity Co. v. State, 128 Md. 50, 97 A. 12, wherein the right of a third party to recover for an indebtedness of a contractor for labor and materials furnished was sustained. The only question in this case is whether the hauling and trucking done by the appellee's assignor was either labor or materials within the meaning of the statute. The appellant relies upon the construction usually made by the courts in mechanic's lien cases, and contends that, because claims for hauling materials have generally been disallowed in such cases, the appellee's claims here should have been disallowed. The appellee argues that this is the view of this court, and relies upon the case of State v. National Surety Co., 148 Md. 221, 128 A. 916, wherein several mechanic's lien cases were cited in support of the court's opinion. The cases there cited were applicable to the facts in that case, but there was no intimation that this court in a case such as is before us would be limited to the construction placed on claims for mechanics' liens. This court has...