Middle West Roads Co. v. Gradmont Haulage Co.

• Decision Date: 13 April 1937
• Docket Number: 15342.
• Parties: MIDDLE WEST ROADS CO. et al. v. GRADMONT HAULAGE CO.
• Court: Indiana Appellate Court

7 N.E.2d 528

103 Ind.App. 297

MIDDLE WEST ROADS CO. et al. v. GRADMONT HAULAGE CO.

No. 15342.

Appellate Court of Indiana, in Banc.

April 13, 1937

Noel Hickam, Boyd & Armstrong, of Indianapolis, for appellants.

Fred Dobbyn and Padgett & Rogers, all of Washington, Ind., for appellee.

DUDINE Judge.

This suit was instituted by appellee against appellant Middle West Roads Company as principal, and appellant United States Fidelity & Guaranty Company as surety, upon a bond given to the Indiana State Highway Commission by said Middle West Roads Company to secure the faithful performance of a contract for the construction of a state highway.

The complaint was in one paragraph. Appellants filed a demurrer to the complaint, which demurrer was overruled, and thereafter appellants filed an answer in general denial. The cause was submitted to the court for trial without a jury and the court found for appellee and against appellants and rendered judgment accordingly. Appellants filed a motion for new trial, which was overruled, and thereafter appellants effected this appeal, assigning as errors relied upon for reversal (1) error in overruling the demurrer to the complaint; (2) error in overruling the motion for new trial.

The complaint alleged that appellants Middle West Roads Company entered into contract with the Indiana State Highway Commission for the construction of a certain highway; that said appellant furnished and the State Highway Commission accepted a bond executed by said appellant as principal, and by appellant United States Fidelity & Guaranty Company as surety, which was conditioned as follows: "* * * Now, if the said Middle West Roads Company shall well and faithfully do and perform the things agreed by them to be done performed according to the terms of said contract, and shall pay all lawful claims of subcontractors, material men and laborers for labor performed and materials furnished in the carrying forward, performing and completing of said contract, we agreeing and assenting that this undertaking shall be for the benefit of any material men or laborers having just claim, as well as for the obligee herein, then this obligation shall be void, otherwise the same shall remain in full force and effect. * * *" (Our italics.)

The complaint alleged further that said Middle West Roads Company, by written contract, sublet to one H. K. Lehmer that part of the contract which provided for the grading and shaping of the roadway before the pavement was laid, and the finishing of the earth shoulders and side ditches; that said H. K. Lehmer employed appellee "to haul dirt to be used in constructing said grades and shoulders of said project"; that under said contract of employment appellee "agreed to furnish sufficient men and trucks to haul all dirt * * *"; and said H. K. Lehmer "agreed to pay * * * appellee for such work done the sum of $2.10 per hour for each driver and truck"; that appellee "pursuant to its contract of employment by said H. K. Lehmer, with its trucks performed labor in the construction of said project in this that it did furnish drivers and trucks who hauled dirt to be used and which was used in the construction of the grades and shoulders of said project" to the extent of eight hundred ninety-one and three quarter hours.

In support of the alleged error in overruling the demurrer to the complaint appellants contend that "the complaint lumps together, so the same can not be separated, the value of the labor of the truck drivers which can be recovered under the bond, with the value of the use of the trucks for which the bond is not liable * * * (and therefore) appellee can recover neither." Appellee further contends that recovery cannot be had under the bond for the use of the trucks because it is neither "labor performed" nor "materials furnished" within the meaning of said terms as used in said bond pursuant to ...