Massachusetts Bonding And Insurance Company v. State ex rel. Summers

• Decision Date: 15 January 1925
• Docket Number: 11,677
• Parties: MASSACHUSETTS BONDING AND INSURANCE COMPANY v. STATE, EX REL. SUMMERS
• Court: Indiana Appellate Court

149 N.E. 377

82 Ind.App. 377

MASSACHUSETTS BONDING AND INSURANCE COMPANY v. STATE, EX REL. SUMMERS

No. 11,677

Court of Appeals of Indiana

January 15, 1925

From Orange Circuit Court; James L. Tucker, Judge.

Action by the State of Indiana on the relation of Charles D. Summers against the Massachusetts Bonding and Insurance Company and others. From a judgment for the relator, the defendant appeals.

Reversed.

George Young, Bomar Traylor, Arthur McCart and Richard L. Ewbank for appellants.

A. L Gray, Samuel A. Lambdin, John E. McFall, W. E. Cox and Horace M. Kean, for appellee.

OPINION

PER CURIAM.

Action by appellee State of Indiana on the relation of Charles D. Summers against appellant and other appellees, for the purpose of recovering certain moneys advanced by relator for the construction of a public gravel road, which road was contracted by appellees Weathers and Case with the board of commissioners of Dubois county.

The complaint was in four paragraphs. A demurrer was sustained to the second paragraph and we give it no further consideration.

It is averred in the first paragraph that on November 6, 1911, appellees Weathers and Case entered into a contract with the board of commissioners of Dubois county, Indiana, by which said appellees agreed to construct a certain gravel road in said county, agreeing by such contract to do the work and furnish the material according to the plans and specifications, for which they were to receive $ 19,249. Said appellees filed with their bid their bond in the sum of $ 38,498, with appellee Bankers Surety Company of Cleveland, Ohio, as surety thereon, which bond was accepted and approved by the board and was conditioned that Weathers and Case should duly construct the road and should promptly pay all debts incurred by them in the prosecution of such work, including labor, materials furnished and for boarding laborers thereon. On December 21, 1924, appellee Maryland Casualty Company entered into a reinsurance agreement with appellee Bankers Surety Company by which the surety company was merged into the casualty company so that the casualty company became the owner of the assets of the surety company and assumed its liabilities. Weathers and Case constructed the gravel road, but it is averred that the relator furnished them labor and material in the sum of $ 8,532.40, upon which a credit of $ 4,480 was given for payments, leaving a balance due the relator of $ 4,152.40, upon which balance, the relator was entitled to six per cent. interest from December 1, 1917, for which, because of failure to pay, there was a demand for judgment.

The third paragraph of complaint is against the same defendants and is substantially the same as the first but more specific as to the manner and method of furnishing funds by relator to said Weathers and Case.

The fourth paragraph of complaint contains the same averments as to appellees Weathers and Case entering into a contract with the board of commissioners and the filing their bond with the Bankers Surety Company as surety thereon, and then avers that on the day of , 1911, said surety company notified the board of commissioners that their attorney in fact who signed the bond did so without authority, and had gone beyond his written power of attorney, and such surety company denied all liability on the bond. Thereupon, to secure the performance of the contract and to protect the materialmen and laborers and other creditors of the contractors, the board of commissioners required the contractors to file an additional bond. January 2, 1912, which was after the awarding of the contract, said contractors filed an additional bond in the sum of $ 38,498, with appellant as surety thereon, which bond was approved and accepted by the board and was conditioned that the contractors should construct the road according to the plans and specifications, and should pay all debts incurred in the prosecution of the work, including labor and materials furnished and for boarding laborers thereon. After constructing a portion of the road, the contractors abandoned the same and it was completed by the board of commissioners. It then averred substantially the same facts as to furnishing the funds by the relator for the construction of the road and the failure to pay as are found in the first and third paragraphs.

There was a demand for judgment in this paragraph against all of the defendants therein being appellees Weathers and Case, the Bankers Surety Company, Maryland Casualty Company, and appellant.

In presenting error of the court in overruling its demurrer to the fourth paragraph of the complaint, appellant presents substantially the same questions as were presented in Massachusetts, etc., Ins. Co. v. State, ex rel. (1920), 76 Ind.App. 16, 127 N.E. 223. There was an application to transfer to the Supreme Court, in that case, which was denied. On its authority, we hold that the paragraph in question states a cause of action, and the demurrer thereto was properly overruled. See, also, Robling v. Board, etc. (1895), 141 Ind. 522, 525, 40 N.E. 1079. The fact that the scope of the bond was beyond the provisions of § 7723 Burns 1914, Acts 1905 p. 521, does not invalidate it. The taking of such bond is within the incidental powers of the board. Title Guaranty, etc., Co. v. State, ex rel. (1915), 61 Ind.App. 268, 109 N.E. 237.

Appellant presents error of the court in overruling its motion to separate the cause of action under the first and third paragraphs of the complaint from the cause of action under the fourth paragraph of complaint, and as to whether the court erred in overruling its motion to require the relator to elect which he would try first, the action as stated in the fourth paragraph of complaint or the action as stated in the first and third paragraphs of complaint. That such practice of requiring an election is recognized by our courts. See Boonville Nat. Bank v. Blakey (1906), 166 Ind. 427, 448, 76 N.E. 529. Section 254 Burns 1914, Acts 1889 p. 264, provides that "whenever any public officer or other person is required by the law of this state to give bond for the performance of his duties, and more than one bond is given by the same officer or person for the performance of such duties, either during the same period of time or for successive periods of time, any person entitled to sue upon either of said bonds may bring a suit upon all or any number of said bonds, and in such action the liability of all the respective sureties thereon shall be determined by the court or jury." That the first bond or the one given by the Bankers Surety Company was a bond required by the laws of this State is unquestioned. More than one bond was given by appellees Case and Weathers, and, under such circumstances, by the foregoing section of the statute, even though one of the bonds is a guaranty bond and the other a surety, a joint action upon both of said bonds was authorized, and it was for the jury to determine the respective rights of the sureties. State, ex rel., v. Parsons (1897), 147 Ind. 579, 47 N.E. 17, 62 Am. St. 430. Generally speaking, it is within the discretion of the trial court whether upon proper motion made a separate trial will be granted to the respective defendants. Under the circumstances of this case, and in view of the statute quoted above, there was certainly no error in overruling appellant's motion to require the relator to elect as to which cause of action he would try first.

Appellee's motion to dismiss the appeal heretofore filed is overruled. We hold that the transcript shows a good faith effort to place proper marginal notes upon the record. Another question presented therein is that the bill of exceptions is not in the record. As appears above, other questions not involving the bill of exceptions are presented by this appeal, and under such state of the record, the fact, if such it were, that the bill of exceptions is not in the record would not be a sufficient ground for dismissing the appeal.

We have next to consider, under the error assigned by appellant that the verdict of the jury is not sustained by sufficient evidence and that it is contrary to law, the question as to whether the bill of exceptions is in the record. It appears by the record that on February 13, 1923, being in term, the following entry was made of record, to wit: "Comes now, the defendant Massachusetts Bonding and Insurance Company, by its attorneys and tenders herein its bill of exceptions which said bill of exceptions are in the following words and figures; to wit: (Here insert.) And the court examines and signs said bill of exceptions and orders the same filed herein and made a part of the record, which said bill of exceptions heretofore signed and approved by the court is now filed, and is in the following words and figures; to wit": Then follows an index containing seven pages of what purports to be the bill of exceptions, upon the first page of which index there is a filing mark of the court dated February 13, 1923. Following this index, appears the number of the action of the trial court with the caption of the cause followed by:

"General Bill of Exceptions.

"BE IT REMEMBERED. That at the September term, 1922, of the Orange Circuit Court, to wit: on the 22nd day of September 1922, Honorable James L. Tucker, Judge, presiding, the following proceedings were had in this case: The cause being at issue and the jury impanelled and sworn, the parties introduce the following evidence": After what purports to be the evidence adduced the judges' certificate reads as follows: "AND BE IT FURTHER REMEMBERED that the above and foregoing transcript of the evidence so taken, reported and filed as aforesaid, contains all the evidence given in said cause,...