Marquette Cement Mfg. Co. v. Fidelity & Deposit Co. of Maryland

• Decision Date: 04 February 1935
• Docket Number: 31496
• Citation: 158 So. 924,173 Miss. 164
• Parties: MARQUETTE CEMENT MFG. CO. et al. v. FIDELITY & DEPOSIT CO. OF MARYLAND et al
• Court: Mississippi Supreme Court

158 So. 924

173 Miss. 164

MARQUETTE CEMENT MFG. CO. et al. v. FIDELITY & DEPOSIT CO. OF MARYLAND et al

No. 31496

Supreme Court of Mississippi

February 4, 1935

Division A

APPEAL from chancery court of Marshall county HON. N. R. SLEDGE Chancellor.

Suit by the Marquette Cement Manufacturing Company against the Fidelity & Deposit Company of Maryland, the New Amsterdam Casualty Company, and others. From a decree sustaining the first-named defendant's demurrer and dismissing the bill as to it, plaintiff appeals, and from a decree overruling defendant Casualty Company's general and special demurrers, the latter company appeals. Affirmed in part and reversed in part and remanded.

Affirmed in part; reversed in part and remanded.

Lester G. Fant, Sr. & Jr., of Holly Springs, and Wm. M. & Wm. G. Hall, of Memphis, Tenn., for Marquette Cement Mfg. Co.

The statute requires the publication of notice in case of completion as well as in case of abandonment before completion, as necessary to start the running of the one year limitation against furnishers' suits.

Oliver Construction Co. v. Crawford, 142 Miss. 490, 107 So 877; Globe Indemnity Co. v. U.S. 271 U.S. 476, 78 L.Ed. 924; U. S. v. Winkler, 162 F. 397.

Counsel's contention that appellee has as many causes of action against appellant as appellant has bonds in this case involves a misconception as to what the cause of action is in this case.

Continental Casualty Co. v. Crook, 157 Miss. 518, 128 So. 574.

Appellant in this case did not have an account with each of the projects bonded by appellant, but one running account for cement furnished to the contractor for all the work to be used, and which was used as and to the extent needed on each of the contracts, and that its suit is for the balance due upon that one account for the cement used by the contractor in the completion of all of his contracts bonded by appellant, and that the bonds on all the projects, made by appellant, conditioned or to be considered as conditioned because of the requirements of the statute, for the payment of persons furnishing labor or material used in the work, became as one bond for the payment of this account or the balance of it.

Southern Surety Co. v. Ft. Lupton Mercantile Co., 80 Colo 80, 249 P. 263.

The contention that appellee sues in different capacities in this case is, in our opinion, a misconception of the position that the first furnisher who sues, occupies in the suit upon a contractor's bond or bonds. It will be seen by reference to the statute that it does not declare that the furnisher bringing the suit sues for the benefit of others as well as for his own benefit, but simply for himself.

Section 5972, Code 1930.

It has been held under the federal statute, after which the Mississippi statute is modeled, that furnishers intervening in the suit, must bring their suits within one year after completion and final settlement of the contract just as the original furnisher has to do.

Fleischman Construction Co. v. U.S. 270 U.S. 349, 70 L.Ed. 624.

The effect of the statute is that the furnisher bringing the suit, has one suit and each furnisher who intervenes has his own separate and independent suit, tried together but independent of each other.

Title Guaranty & Trust Co. v. Crane, 219 U.S. 24, 55 L.Ed. 72; Fleischman Construction Co. v. U.S. 270 U.S. 349, 70 L.Ed. 624; Continental Casualty Co. v. Crane, 157 Miss. 518, 128 So. 574; Fidelity & Deposit Co. v. Wilkerson County, 106 Miss. 654, 64 So. 457.

Counsel also suggest as an objection to appellee's being allowed to proceed in one suit upon all the bonds, that it will interfere with other furnishers who may intervene with claims under one or more of those bonds. The answer to that is, first, that the record discloses no interventions; and, second, that if there are interventions, there is no reason why the intervenors cannot make their issues with appellant and this appellee just as they would in a suit upon a single bond.

Royal Indemnity Co. v. Young & Vann Supply Co., 144 So. 532.

The bonds sued upon were given in compliance with the requirements of chapter 217, Acts of 1918, now section 5971, et seq., of the Code of 1930, and were conditioned for the payment of the claims of persons furnishing labor or material used in the work, as well as for performance of the contracts.

We respectfully submit that the court committed manifest error in dismissing complainant's cause against the Fidelity & Deposit Company with prejudice, in the circumstances of this case, in the face of the provisions of Code section 396, and that his decree should be reversed and the cause should be remanded to be proceeded with as the decree directed and Code section 396 contemplates, that is, that the causes be split or that there be a dismissal as to the Fidelity & Deposit Company without prejudice if it elect to do that.

Sivley, Evans & Evans, of Memphis, Tenn., for Fidelity & Deposit Co. of Maryland.

The court in sustaining the demurrer of this defendant as to the application of the payments to the payment of the oldest items on the account, merely applies in legal principle universally recognized and definitely adopted in this state.

J. R. Watkins Co. v. Buchanan et al., 149 Miss. 483, 115 So. 773; Travis & Co. v. Mosley, 148 Miss. 368, 114 So. 628; 21 R. C. L. 103, par. 110; 48 C. J. 657, par. 111.

We think it manifest that the legal effect of the decree in overruling all the grounds of demurrer except two, and in sustaining those two grounds, was that it was all done simultaneously. In legal effect, it was all done at one and the same time.

We submit that after the demurrer was sustained, the legal effect of which was to dismiss complainant's bill, complainant could not then dismiss it without prejudice.

Moore v. Evans, 98 Miss. 855; Griffith's Mississippi Chancery Practice, sections 311 and 622.

The decree recites that after the demurrer was sustained complainant "thereupon" moved to dismiss it without prejudice. We submit that the law in Mississippi is settled by the adjudications of this court that after a demurrer is sustained complainant cannot then dismiss its suit without prejudice.

Griffith's Mississippi Chancery Practice, par. 534; Peoples Bank v. Pennington, 137 Miss. 654; Schaffer v. Deemer Mfg. Co., 108 Miss. 257; C. & A. R. R. Co. v. Union Rolling Mill Co., 109 U.S. 702, 27 L.Ed. 1081; Weathersby v. Lumber Co., 88 Miss. 535; Thornton v. Natchez, 88 Miss. 1.

Julian C. Wilson and Lowell W. Taylor, both of Memphis, Tenn., for appellee and cross-appellant, New Amsterdam Casualty Company.

Each suit involved herein on each separate contract for paving is an entirely separate and distinct cause of action, not because they are on separate bonds but because each bond provides for the performance and payment of materialmen on a separate contract.

Continental Casualty Co. v. Crook, 157 Miss. 518.

The claims thus united are not equitable in their nature nor the assertion of equities. They are distinct law demands on bonds.

Illinois Surety Co. v. U.S. 240 U.S. 214, 60 L.Ed. 609.

While one complainant may sue the same defendant on several different causes of action in the same bill, yet that complainant may not join in the same suit these separate and distinct or disconnected matters where the right in which he sues is not the same in both or all the instances. He cannot sue in several different capacities.

21 C. J. 421, sec. 441; Continental Casualty Co. v. Crook, 157 Miss. 518; Illinois Surety Co. v. U.S. 240 U.S. 214, 60 L.Ed. 609.

Causes of action may indeed be joined, but these causes must flow from or be incidental to the same source. Where they flow from different and disconnected sources, especially where they are not matters of equity, a bill uniting them, where the plaintiff sues in a different character, is multifarious.

Clark v. Miller, 142 Miss. 122, 145; Guess v. Strahan, 106 Miss. 1, 19; Newell v. Railroad, 106 Miss. 182, 186; Town of Louisville v. Armstrong, 113 Miss. 385; Columbus Insurance & Banking Co. v. Humphries, 64 Miss. 258, 276.

No great inconvenience or harm would come from upholding the objection of multifariousness to this bill.

Section 396, Code of 1930.

The entire right of action ceases to exist one year after the performance and final settlement of the contract. This is not a bar by the ordinary statute of limitations, but is a limitation upon the right of suit.

Section 2293, Code of 1930.

The suit now before the court is limited by the statute which gives it birth to be brought within a shorter time than is prescribed by chapter 45 of the Code of 1930.

Section 2293, Code of 1930; Louisville & Nashville R. R. Co. v. Dixon, 168 Miss. 14, 20; Inerarity v. A. S. Wade & Co., 141 Miss. 554; Dodds v. Cavitt, 133 Miss. 474.

A proper construction of section 5973, Code of 1930, is that no publication is necessary of completion and final settlement, but the publication required is only of the determination of abandonment of the work.

Section 5973, Code of 1930; Smith v. Farley, 155 N. Y. A.D. 814.

The determination of courts that the time begins to run from final settlement or abandonment which takes the place of final settlement is practically uniform.

National Surety Co. v. Price, 162 Ky. 632, 172 S.W. 1072; Bethlehem Construction Co. v. Christiana Construction Co., 144 A. 830; Mandell v. U.S. 4 F.2d 659; Southern Surety Co. v. Western Pipe & Steel Co., 16 F.2d 456; Antrim Lbr. Co. v. Hanan, 18 F.2d 548; U. S. v. Newport Ship Corporation, 18 F.2d 556; U. S. v. Title Guaranty & Ins. Co., 254 F. 958; U.S.C. A., Title 40, sec. 270; Globe Indemnity Co. v. U.S. 291 U.S. 476, 484, 78 L.Ed. 924.

This suit is upon a legal demand on bonds and is not equitable in...