Mcelrath & Rogers v. W. G. Kimmons & Sons, 26372

CourtMississippi Supreme Court
Writing for the CourtETHRIDGE, J.
Citation112 So. 164,146 Miss. 775
PartiesMCELRATH & ROGERS et al. v. W. G. KIMMONS & SONS et al. [*]
Docket Number26372
Decision Date11 April 1927

112 So. 164

146 Miss. 775

MCELRATH & ROGERS et al.
v.
W. G. KIMMONS & SONS et al.
[*]

No. 26372

Supreme Court of Mississippi

April 11, 1927


Division B

1. HIGHWAYS. Public contractor's bond covers only material and labor consumable in work; public contractor's bond does not cover material and equipment necessary for contractor to have to perform work (Laws 1918, chapter 217).

The bond required of contractors in public work by chapter 217, Laws of 1918, does not make a contractor and his bondsmen liable on the bond for material and equipment necessary for the [146 Miss. 776] contractor to have to perform the work, but only covers material and labor consumable in the work. The contractor, or subcontractor, must furnish his equipment, and the bond secures only the payment for labor and material which enters into the work, or is necessarily consumed in the transaction of the work.

2. HIGHWAYS. Repairs on public contractor's equipment are not secured by his bond; public contractor's bond does not secure purchase price of machinery coming under head of equipment (Laws 1918, chapter 217).

Repairs on contractor's equipment are not secured by such bond; neither does the bond secure the purchase price of machinery which comes under the head of equipment.

3. HIGHWAYS. Public contractor's bond may cover necessary food and supplies to board laborers pursuant to contract, if camp or commissary is not operated for profit (Laws 1918, chapter 217).

Where a contractor contracts with his laborers or employees to pay certain wages and board, and there is no place whereat the laborers can obtain board, the bond of the contractor may be binding for necessary food supplies, provided such camp or commissary is not operated for profit, and does not exceed the actual cost.

4. HIGHWAYS. Clothes, cigarettes, tobacco, notions, and cash furnished laborers by third parties are not protected by contractor's bond (Laws 1918, chapter 217).

Clothes, cigarettes, tobacco, notions, and cash furnished to laborers by third parties are not recoverable under the bond provided for in said chapter 217, Laws of 1918.

5. HIGHWAYS. Furniture and household effects for maintaining contractor's camp to board labor do not come within contractor's bond (Laws 1918, chapter 217).

Furniture and household effects supplied to a contractor to maintain a camp in which to board his labor are items for equipment, and are not recoverable from the contractor's bondsmen.

6. APPEAL AND ERROR. On allowance in full of account against contractor and bondsmen containing items for equipment and items directly consumable in work and other items, purpose of which was not clearly shown, supreme court will reverse case for proper proof and separation of items (Laws 1918, chapter 217).

Where an account, as a basis for suit against a contractor and his bondsmen, under the above chapter, contains items for the contractor's equipment and other items directly consumable in the transaction of the work, and also other items, the purpose of which is not shown clearly in the account, the court will, where the account is allowed in full by the court below, reverse the case [146 Miss. 777] for proper proof and separation of the items according to their intended use.

ON SUGGESTION OF ERROR.

PAYMENT. Ordinarily, payments on account will be applied to oldest items; money derived from particular source or fund need not necessarily be applied on oldest items of account on which paid; where part of account is properly payable out of particular fund, and part is not, payment with such funds will be applied to items properly payable therefrom; moneys derived from payment on contract should be applied first to items of account furnished to contractor for work proper.

While, ordinarily, payments made upon an account will be applied to the oldest items of the account, yet this is not true where the money paid is derived from a particular source or fund; and, where a part of the account is properly payable out of a particular fund, and a part is not payable out of such fund, the payment made with such funds will be applied to the items properly payable out of the particular fund, whether such item be the oldest items in the account or not.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Alcorn county HON. C. P. LONG, Judge.

Suit by W. G. Kimmons & Sons against McElrath & Rogers and others, in which the Corinth Furniture Company and others intervened. From the judgment below, defendants and the Corinth Furniture Company appeal, and plaintiffs cross-appeal. Affirmed in part, and reversed in part, and remanded, with directions.

Judgment affirmed in part, and reversed in part. Overruled.

Bruce D. Newson, for appellants.

I. The claim of W. G. Kimmons & Sons. The testimony before the court was that all hay, oats, mixed feed and crops were used in the construction of the road. However, the court allowed claimants eight sacks of flour, [146 Miss. 778] eight dollars; one gallon of oil, eighty-five cents; freight, one dollar and fifty-two cents; freight, five dollars and ninety-three cents; freight, four dollars and sixty-seven cents; four sacks of meal, one dollar and twenty-five cents; freight, one dollar and sixty-eight cents; freight, eight dollars and three cents; one auto tire and tube, twenty-five dollars; one auto tire and tube, second purchase, twenty-five dollars, all of which should have been excluded, if anything at all should have been allowed Kimmons & Sons.

II. The claim of W. H. Berkheiser, doing business as Service Lumber and Manufacturing Company. This was for form lumber and after it had been used, it was piled up on the side of the road and removed by other parties. The evidence shows that this lumber was worth at least fifty per cent of the sale value and, therefore, if the contractor and his surety are liable for any amount, the most they are liable for will be one-half of the total amount allowed by the lower court. Kennedy v. Commonwealth, 182 Mass. 480, 65 N.E. 828, and cases cited. See, also, Oppenheimer v. Morrell, 118 Pa. 189, 12 Atl, 307; Farmers Irrigation Co. v. Kaum (Colo.), 135 P. 766; Beals v. Fidelity & Deposit Co. (N. Y.), 78 N.Y.S. 584; Rittenhouse & Embree Co. v. Brown & Co., 254 Ill. 549, 98 N.E. 971; Empire State Surety Co. v. City of Des Moines, 131 N.W. 879; Thomas v. Commonwealth, 215 Mass. 369, 102 N.E. 428; Ames v. Dyer, 41 Me. 397; Ramsey v. Hawkins (Fla.), 82 So. 823.

The well-established doctrine is that the words "material furnished for any structure, work or improvement in contracts of this kind" apply only to such materials as enter into and become competent parts of the structure, work or improvement contemplated. Comm. v. Nat'l Surety Co., 253 Pa. 5, 92 A. 1034; Philadelphia v. Malone, 214 Pa. 97, 63 A. 539; Empire State Surety Co. v. Des Moines, 131 N.W. 870. [146 Miss. 779]

Some courts hold broadly that to sustain a mechanic's lien for materials furnished for a structure, it must appear that the materials were actually used and consumed in the construction. Robinson v. Crotwell Bros. Lbr. Co. (Ala.), 52 So. 733; Silvester v. Coe Quartz Min. Co., 80 Cal. 510, 22 P. 217; Bewick v. Muser, 83 Cal. 368, 23 P. 389; Chaplin v. Pesse & B. Paper Works, 30 Conn. 461, 71 Am. Dec. 263; Potter Mfg. Co. v. Mayers & Co., 171 Ind. 513, 131 A. S. R. 268, 86 N.E. 837; Luper v. Mayers, 10 Ind.App. 314, 37 N.E. 1070; Rice v. Hodge, 726 Kan. 164; Hill v. Bowers, 45 Kan. 592, 26 P. 13; McGany v. Averill, 50 Kan. 362, 34 A. S. R. 120, 31 P. 1082; Consolidated Eng. Co. v. Crawley, 105 La. 615, 30 So. 222; Smalley v. Gearing, 121 Mich. 557, 108 N.W. 285; Missoula Merc. Co. v. O'Donnell, 24 Mont. 65, 75, 60 P. 594, 991.

III. The claim of Galtney Motor Co. should have been disallowed in toto. There is a claim of thirty-six dollars for repairs on a tractor and for rent of tractor, one hundred dollars. State for use of Gwyns-Falls; Quarry Co. v. Nat'l Surety Co., 128 A. ; Pierce Oil Corp. v. Parker (Ark.), 270 S.W. .

We approve generally and apply the rules of separation of items as stated by Judge WEBB in U. S. for use of Thomas Laughlin Co. v. Morgan (C. C.), 111 F. 474, 488 (certiorari denied 241 U.S. 670, 60 L.Ed. 1230). See, also, Empire State Surety Co. v. Des Moines, 131 N.W. 870; Standard Boiler Works v. Nat'l Surety Co. (Wash.), 43 L. R. A. 162; Kansas City v. Youmans, 213 Mo. 151, 112 S.W. 225; Basshor v. Baltimore, etc., R. R. Co., 65 Md. 99, 3 A. 285.

IV. The claim of Taylor & Haynie for groceries, cigarettes, overalls, shirts, and cash should have been disallowed. Watkins v. U. S. F. & G. Co., 103 So. 224; Central Trust Co. v. Texas, etc., R. R. Co. (C. C.), 27 F. 178; Standard Oil Co. v. Lane, 75 Wis. 636, 44 N.W. 644, [146 Miss. 780] 7 L. R. A. 191; Newgrass v. Atlantic, etc., Ry. Co. (C. C.), 56 F. 676; Giant Powder Co. v. Oregon, etc., Ry. Co. (C. C.), 42 F. 470, 8 L. R. A. 700; Winslow v. Urquhart, 39 Wis. 269.

V. The claim of J. D. Biggers Hdw. Co. should have been disallowed. This claim consists of many various and sundry items such as cement, single trees, hammers, sledge-hammers, whips, log chains, files, plastering trowel, hand axes, saws, emery wheel, oil stoves, bolts, monkey wrenches, bridles, bridle bits, pocket knives, pencils, hair clippers, padlock hinges, nails, paint brushes, rules, water bucket, water dippers, pliers, horseshoes, horseshoe nails, washers, buggy lines, wagon lines, skillets, knives and forks, teaspoons, coffee pots, lamps, dish pans, rivets, staples, solder, steel brushes, hay wire, chalk line, tractor wheel, phone calls, roller bearings, garden forks, chisels, grass rope, stovepipe joints, and steel wheelbarrows. The total amount of this account was two thousand seven hundred ninety-one dollars and forty-nine cents.

In order for this judgment to be sustained, the statute has got to be so broadened that it will cover shop, tools, and...

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22 practice notes
  • U.S. Fidelity & Guaranty Co. v. Benson Hardware Co., 4 Div. 510.
    • United States
    • Supreme Court of Alabama
    • January 22, 1931
    ...National Surety Co., 246 U.S. 257, 38 S.Ct. 250, 62 L.Ed. 703, L. R. A. 1918D, 776. See, also, 46 A. L. R. 513, and McElrath v. Kimmons, 146 Miss. 775, 112 So. 164, 680. A bond under the federal act also includes work done at the quarry, fifty miles away, and the labor of men who stripped t......
  • Hartford Accident & Indemnity Co. v. Natchez Inv. Co., Inc., 28877
    • United States
    • United States State Supreme Court of Mississippi
    • February 23, 1931
    ...therefor. Interest is not allowable on claims made by materialmen against the contractor's bond. McElwrath and Rogers v. Kimmons et al., 112 So. 164. The recovery on the bond is a recovery of the penalty named in the bond and penalties do not bear interest until judgment, therefore, neither......
  • U.S. Fidelity & Guaranty Co. v. Yeilding Bros. Co. Department Stores, 6 Div. 932.
    • United States
    • Supreme Court of Alabama
    • May 19, 1932
    ...1918D, 776. Under a similar statute in Mississippi, practically the same result was reached (McElrath & Rogers v. W. G. Kimmons & Sons, 146 Miss. 775, 112 So. 164, 166, 680), in which it was observed that "ordinarily, supplies for a *** commissary would not be allowed." That the goods were ......
  • Shuptrine v. Jackson Equipment & Service Co, 30882
    • United States
    • Mississippi Supreme Court
    • December 4, 1933
    ...of equipment is included in the liability of the principal contractor's bond in a public contract. McElrath & Rogers v. Kimmons & Sons, 146 Miss. 775, 791; 59 C. J. 1061; Womack v. Central Lbr. Co., 131 Miss. 201; Terry v. Little (Ark.), 18 S.W.2d 916; Ryan v. Shannaham (Cal.), 285 P. 1045;......
  • Request a trial to view additional results
22 cases
  • U.S. Fidelity & Guaranty Co. v. Benson Hardware Co., 4 Div. 510.
    • United States
    • Supreme Court of Alabama
    • January 22, 1931
    ...National Surety Co., 246 U.S. 257, 38 S.Ct. 250, 62 L.Ed. 703, L. R. A. 1918D, 776. See, also, 46 A. L. R. 513, and McElrath v. Kimmons, 146 Miss. 775, 112 So. 164, 680. A bond under the federal act also includes work done at the quarry, fifty miles away, and the labor of men who stripped t......
  • Hartford Accident & Indemnity Co. v. Natchez Inv. Co., Inc., 28877
    • United States
    • United States State Supreme Court of Mississippi
    • February 23, 1931
    ...therefor. Interest is not allowable on claims made by materialmen against the contractor's bond. McElwrath and Rogers v. Kimmons et al., 112 So. 164. The recovery on the bond is a recovery of the penalty named in the bond and penalties do not bear interest until judgment, therefore, neither......
  • U.S. Fidelity & Guaranty Co. v. Yeilding Bros. Co. Department Stores, 6 Div. 932.
    • United States
    • Supreme Court of Alabama
    • May 19, 1932
    ...1918D, 776. Under a similar statute in Mississippi, practically the same result was reached (McElrath & Rogers v. W. G. Kimmons & Sons, 146 Miss. 775, 112 So. 164, 166, 680), in which it was observed that "ordinarily, supplies for a *** commissary would not be allowed." That the goods were ......
  • Shuptrine v. Jackson Equipment & Service Co, 30882
    • United States
    • Mississippi Supreme Court
    • December 4, 1933
    ...of equipment is included in the liability of the principal contractor's bond in a public contract. McElrath & Rogers v. Kimmons & Sons, 146 Miss. 775, 791; 59 C. J. 1061; Womack v. Central Lbr. Co., 131 Miss. 201; Terry v. Little (Ark.), 18 S.W.2d 916; Ryan v. Shannaham (Cal.), 285 P. 1045;......
  • Request a trial to view additional results

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