Miller v. Bonner

• Decision Date: 03 January 1926
• Docket Number: 27080,27729
• Court: Louisiana Supreme Court
• Parties: MILLER v. BONNER et al. (two cases)

111 So. 776

163 La. 332

MILLER
v.
BONNER et al. (two cases)

Nos. 27080, 27729

Supreme Court of Louisiana

January 3, 1926

[111 So. 777]

All Applications for Rehearing Denied February 28, 1927

Appeal from Twenty-Fourth Judicial District Court, Parish of St. John the Baptist; Prentice E. Edrington, Sr., Judge.

Concursus proceeding by Paxton Miller against W. S. Bonner and others, wherein certain creditors intervened. Judgment for plaintiff and his assignee, the Interstate Trust & Banking Company, against defendant and his surety, and against the State Highway Department, and for certain interveners against defendant and his surety and against plaintiff and his surety, and adjudging preference to interveners' claims, and the Southern Surety Company, United States Fidelity & Guaranty Company, and the State Highway Department appeal, and the Interstate Trust & Banking Company, as assignee of plaintiff, separately appeals.

Judgment reversed, set aside, and rendered.

Dufour, Goldberg & Kammer, of New Orleans, for appellant Southern Surety Co.

Percy Saint, Atty. Gen., Wylie Barrow, of Baton Rouge (T. S. Walmsley, of New Orleans, of counsel), for appellant Louisiana Highway Commission.

Spearing, Miller & Mabry, of New Orleans, for appellant U.S. Fidelity & Guaranty Co.

Spencer, Gidiere, Phelps & Dunbar, Milner, & Porteous, and Prentice E. Edrington, Jr., all of New Orleans, for appellants Miller and Interstate Trust & Banking Co.

J. V. Chenet, of Mt. Airy, and Joseph A. Breaux, of New Orleans, for interveners.

LAND, J. O'NIELL, C. J., and BRUNOT, J., dissent.

OPINION [111 So. 778]

[163 La. 338] LAND, J.

This is a concursus proceeding brought by plaintiff, who is the subcontractor of the defendant W. S. Bonner, in order to recover certain amounts for labor and work performed in the construction of a graveled macadam highway in the parish of St. John the Baptist, and to have recognized and enforced the lien claimed by plaintiff on the road in question.

On January 30, 1918, W. S. Bonner entered into a written contract, under Act 49 of 1910, with the state of Louisiana, through its state-highway engineer and department, and with the police jury of the parish of St. John the Baptist, for the construction of this road.

Bonner gave bond with the United States Fidelity & Guaranty Company as surety forthe performance of the work and for the payment of all workmen and furnishers of material and supplies; and in February, 1918, this contract was sublet by Bonner to plaintiff, who in turn gave similar bond as indemnity to Bonner, with the Southern Surety Company as surety.

Paxton Miller, subcontractor, and his surety, W. S. Bonner, the contractor, and his surety, the state of Louisiana, through its state highway engineer and department, the police jury of the parish of St. John the Baptist, through its president, and intervening claimants are parties to the concursus proceeding, in which plaintiff seeks to be paid by privilege and preference to the interveners, and to have canceled and erased their recorded claims and asserted privileges on the public highway for material, supplies, labor, and money for the payment of labor furnished by interveners to plaintiff, the subcontractor.

Interveners seek to recover the amount of their respective claims against the defendant W. S. Bonner, the contractor, and the surety on his bond, against Paxton Miller, subcontractor, and the surety on his bond, and against the state highway department.

Judgment was rendered in the lower court [163 La. 339] in favor of Miller, plaintiff, and the Interstate Trust & Banking Company,the assignee of Miller, and against the defendant Bonner and his surety, the United States Fidelity & Guaranty Company, in the sum of $ 15,605.86, and in favor of Miller and the bank against the state highway department, in the sum of $ 5,188.93, and setting aside the final estimate of the highway department.

Judgment was rendered, also in favor of Augustin Lasseigne, intervener, for $ 3,209.27, in favor of Beraud L. Mestayer, intervener, for $ 152.75, and in favor of the other interveners for the full amounts sued for, against W. S. Bonner, contractor, and his surety, and against Paxton Miller, subcontractor, and his surety in solido, and it is ordered in said judgment that interveners be paid their claims by preference and priority over all other claimants.

From this judgment both of the surety companies and the state highway department have appealed. The Interstate Trust & Banking Company, as assignee of Miller, has filed a separate appeal in case No. 27729, which is consolidated with the present appeal, No. 27080. Bonner has not appealed.

1. The defendant Bonner and his surety, the United States Fidelity & Guaranty Company, and the state highway department, through its engineer, excepted to the petition of plaintiff, Paxton Miller, on the grounds that said petition is vague and indefinite and fails to disclose a cause of action; that there is misjoinder and confusion of causes of action, and misjoinder of defendants; and that plaintiff has mistaken his cause of action, if any he has.

(a) This is clearly a concursus proceeding, the object of which is to adjust in one common proceeding, and to settle by one and the same judgment the conflicting claims of all of the parties. Act 262 of 1916, § 3. [111 So. 779]

(b) As this is a concursus proceeding, there is no misjoinder and confusion of actions, nor misjoinder of parties, as the principals, [163 La. 340] the contractor and subcontractor and their respective sureties, the police jury of St. John the Baptist, the state highway department, and the interveners are necessary parties and had to be cited. State v. Jackson & Co., 137 La. 931, 69 So. 751.

(c) The petition of plaintiff in our opinion is sufficiently clear and definite as to the cause of action, which is for balance due plaintiff, under itemized statements, for labor and work performed by him as subcontractor in the construction of the highway.

(d) As neither Act 49 of 1910, nor articles 3249 and 3272 of the Civil Code, create liens on "public works," and as the Act 134 of 1880 leaves out the word "roads," no lien on the public road constructed in this case is given; it being well established that public property does not come under the operation of statutes creating mechanic's or other liens, unless expressly so provided. State v. Jackson & Co., 137 La. 931, 69 So. 751.

The allegations of plaintiff and of interveners as to their superior liens on the public road constructed are not to be considered, therefore, in the nature of well-pleaded facts, which must be accepted as true, in disposing of the exceptions of no cause of action in this case, but merely as erroneous conclusions of law.

It follows, necessarily, that a cause of action, as to the alleged right of payment by priority and by lien or privilege of the claims of plaintiff and of the interveners, is not disclosed in the petitions of either.

2. The exceptions of no cause of action pleaded to plaintiff's petition by defendant Bonner and his surety, the United States Fidelity & Guaranty Company, were referred to the merits. In discussing these exceptions, it becomes our duty, therefore, to consider the following special defense set up in the answer of the surety company:

"Respondent particularly denies that the said bond was or is in favor, or inured to the benefit of the plaintiff, or of any of the subcontractors [163 La. 341] or materialmen working or claiming under him, and further denies that said bond inures to their benefit or to the benefit of any of them."

It is provided in section 5 of Act 49 of 1910 under which the contract for the construction of the highway has been made, that:

"The successful bidder shall be required to furnish bond of a surety company authorized to do business in Louisiana, in a sum equal to one-half of the amount of the contract awarded, conditioned that such work shall be performed in accordance with the plans, specifications and the terms of the contract, and no party bidding for the work shall be accepted as surety on the required bond."

Section 10 of said act declares:

"That every contract for highway improvement to be made under the provisions of this act shall be made in the name of the state of Louisiana signed by the state highway engineer and the contracting parties with the written approval of the president of the police jury of the parish, or of the mayor or other governing authority of the city, town or village wherein the work is to be done."

It is clear from these provisions that the bond required by the statute must be made in favor of the state, as the only obligee, and must be conditioned solely as to the faithful performance of the contract by the successful bidder.

The state highway department, however, has required of the contractor in this case, not only the assumpsit of the statutory condition as to the performance of the contract, but has exacted the superadded condition that Bonner "shall pay all sums due on materials and supplies used and for wages earned by laborers and workmen employed upon the work to be done."

The bond contains also stipulations pour autrui in favor of "all subcontractors, workmen, laborers, mechanics and furnishers of material and supplies." It is a well-settled doctrine, not only in this state, but in the other states of the Union, that where a bond is given under the authority of a law, whatever is included in the bond and which is not required [163 La. 342] by the law must be read out of it, and whatever is not expressed and ought to have been incorporated must be read as if inserted into it. Macready v. Schenck, 41 La.Ann. 456, 6 So. 517; Slocomb v. Robert, 16 La. 173; Davis v. West Louisiana Bank et al., 155 La. 245, 99 So. 207, Id., 155 La. 252, 99 So. 210; Corpus Juris, vol. 9, par. 56; Boswell v. Lainhart et al., 2 La...