McRae v. University of the South
| Decision Date | 08 March 1898 |
| Citation | 52 S.W. 463 |
| Parties | McRAE v. UNIVERSITY OF THE SOUTH. MONROE MFG. CO. v. SOUTH PITTSBURG CONST. & BLDG. CO. RIDDLE et al. v. McRAE. FALL v. SAME. |
| Court | Tennessee Supreme Court |
Error to chancery court, Franklin county; T. M. McConnell, Chancellor.
Bills by A. McRae, Riddle & Co., J. H. Fall & Co., and the Monroe Manufacturing Company, against the University of the South and the South Pittsburg Construction & Building Company, to enforce mechanics' liens. The University filed a cross bill, making the South Pittsburg Construction & Building Company and its sureties parties, for the purpose of holding them liable on a bond. Decree was entered for McRae against the University, and for the University against the Construction Company and its sureties for the amount recovered by McRae. The Construction Company appealed from the decree against it, but did not perfect its appeal, and the decree was affirmed. Upon petition of the Construction Company and the sureties, a writ of error was issued to review the decree. Reversed.
Banks & Embrey, for University of the South. W. H. Brannon and Spears, Allison & Pope, for South Pittsburg Const. & Bldg. Co. and B. F. Patton & Co. Marks, Fitzpatrick & Lynch, for A. McRae. Nolen & Slemons and Floyd Estill, for Riddle & Co.
This case is before us on a writ of error sued out by the South Pittsburg Construction & Building Company, and other parties on a bond given by it to the University of the South, to be relieved of a decree for $4,280 rendered against them in these cases by the court below in favor of said University. The facts appearing in the record, proper to be stated to present the questions for decision, are these:
In October, 1890, the South Pittsburg Construction & Building Company entered into a written contract with the University of the South to furnish the material and construct for the latter a memorial hall, according to the terms of its contract and the plans and specifications agreed upon, for the sum of $28,745. It gave the following bond for the proper performance of its contract: This obligation is signed by the South Pittsburg Construction & Building Company as principal, and the other parties as sureties thereon. Under the contract, the University was to pay the Building Company on monthly estimates as the work on the hall progressed. After the Pittsburg Company had done considerable work in erecting the hall, and had received about $21,000 from the University on the contract, it made a contract with McRae, one of its officers, and one of the signers of the bond aforesaid, to complete the hall, agreeing to pay him therefor the sum of $10,500. A. McRae completed the building, and the University paid him the balance it owed under its contract with the South Pittsburg Construction & Building Company, and some $3,000 in addition for extra work.
The Pittsburg Company, it seems, was unable or unwilling to pay McRae the balance due him under his contract with it. McRae took the necessary steps to preserve his lien on the building, and, to enforce it, filed the original bill in this cause. His bill was filed December 23, 1892, against the University of the South and the South Pittsburg Construction & Building Company, to collect the balance due him, and to have his recovery declared a lien on the hall and lot on which it was erected, and for a sale thereof to pay his recovery. The University of the South answered the bill. We need not, in view of the results, state the position of its answer, further than to say that it denied that it owed the complainant, McRea, anything, and claimed that it had paid everything that it had agreed to pay under its contract with the South Pittsburg Construction & Building Company. It averred various facts and reasons why McRae had no lien on the hall. A few days after its answer was filed, it filed a cross bill in the case. Omitting many of its averments, its main purpose was to bring in the South Pittsburg Construction & Building Company and its sureties on its bond, above copied, and hold them liable on the bond, in the event McRae succeeded in his suit to fix a lien on the hall, to the extent McRae recovered against it. B. F. Patton, C. L. Ingersoll, R. A. Patton, and Raulie Beene demurred to this cross bill on the following grounds: (1) Because they were not parties to the original bill, and the matter in litigation in the cross bill, so far as they are concerned, is not germane to the original litigation; (2) because the bond was executed for the completion of the Walsh Memorial Hall by the South Pittsburg Construction & Building Company, and the cross bill shows that it has been completed. In the meantime Riddle & Co., J. H. Fall & Co., and the Monroe Manufacturing Company had filed bills to enforce liens on the hall for materials furnished by them and used in its erection. Another party also filed a petition to have his claim of $700 or $800 declared a lien. These causes were consolidated with the case of McRae against the University. A large volume of proof was produced by the parties. The chancellor heard the consolidated causes February 2, 1895. He held that McRae, as a subcontractor, was entitled to a lien on the Walsh Memorial Hall, that the South Pittsburg Construction & Building Company was not entitled to any further compensation for alleged extra work done by it upon the hall, and that J. H. Fall & Co. were not entitled to recover the amount of their claim against the University of the South. He decreed that the University of the South was entitled to recover of the South Pittsburg Construction & Building Company and its bondsmen, or sureties on the bond above copied, for whatever sum may be found to be due McRae, and which had been declared a lien on the hall. The cause was referred to the master to report, from the proof on file and such other evidence as the parties offered, what was due McRae.
The master, July 8, 1895, filed his report under the order of reference. He reported the sum due to McRae to be $3,043.77, which, with interest added, amounted to $3,525.55. He set out the sums due other complainants who had filed bills to recover for material furnished in completing the hall. Upon exception to this report by McRae, it was modified by the chancellor so as to increase his recovery to $4,280.02, and for this sum he gave a decree against the South Pittsburg Construction & Building Company and the University of the South, and decreed the same a lien on the memorial hall, and ordered it to be sold unless the sum was paid. We should have stated that McRae died soon after his bill was filed, and his case was revived in the name of Beene as his administrator, and the recovery aforesaid was in favor of his said administrator. He also gave the University of the South, under its cross bill, a recovery against the South Pittsburg Construction & Building Company and its bondsmen for the sum decreed to be due McRae, and which had been decreed a lien on the hall. He gave J. H. Fall & Co. a decree against Beene, administrator, for $988.14, but dismissed their bill, with costs, as to the University of the South. He decreed the other parties filing bills recoveries, and directed their payment out of the recovery in favor of Beene, administrator.
The University prayed an appeal to the supreme court from so much of this decree as held it liable for any sum to Beene, administrator, which appeal was granted and perfected. J. H. Fall & Co. prayed and were granted an appeal from so much of the decree as denied them...
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