Miller v. Cornell-Young Co.

• Decision Date: 14 November 1933
• Docket Number: 13717.
• Citation: 171 S.E. 790,171 S.C. 228
• Parties: MILLER et al. v. CORNELL-YOUNG CO. et al.
• Court: South Carolina Supreme Court

171 S.E. 790

171 S.C. 228

MILLER et al. v. CORNELL-YOUNG CO. et al.

No. 13717.

Supreme Court of South Carolina

November 14, 1933

Appeal from Common Pleas Circuit Court of Orangeburg County; M. M Mann, Judge.

Action by John M. Miller and C. C. Langston copartners trading as Miller & Langston, against the Cornell-Young Company and another. Judgment for plaintiffs and defendants appeal.

Affirmed.

J Stokes Salley, of Orangeburg, and Jones, Johnston, Russell & Sparks, of Macon, Ga., for appellants.

A. J. Hydrick and J. Z. McConnell, both of Orangeburg, for respondents.

BONHAM Justice.

Cornell-Young Company was awarded by the state highway department of South Carolina a contract for the construction of sections of a highway in Bamberg and Orangeburg counties. The contractors entered into a contract with one S.E. Ferebe, by which Ferebe agreed to furnish them with the sand they needed for their work. Ferebe employed the plaintiffs to remove a house and the top soil from the pit from which he got the sand which he delivered to Cornell-Young Company, and which was used by them in the construction of the highway. Ferebe failed to pay the plaintiffs, who thereupon brought this action against Cornell-Young Company and Maryland Casualty Company as surety on the bond which Cornell-Young Company gave to the state highway department.

The complaint alleges these facts, and alleges, further, that Cornell-Young Company employed plaintiffs to remove a house and to clear off other material situate over and upon large quantities of sand which was to be used, and which was used, in the construction of the highway under the terms of the contract with the state highway department, and agreed to pay plaintiffs for the work the sum of $118.80; they also allege that Maryland Casualty Company became surety to defendant on its bond to the highway department, and that a condition of the bond was all labor employed and all materials furnished or work done in and around and in connection with the project should be paid for by the principal.

The Cornell-Young Company, for answer to the complaint, admits the allegations of its corporate capacity; its contract with the state highway department for the construction of the highway in Bamberg and Orangeburg counties; that Maryland Casualty Company was surety on its bond to the state highway department, which bond was to insure the faithful performance of each and every condition, stipulation, and requirement made by the contract between it and the highway department; it denied all other allegations of the complaint. For a second defense it alleged that, if plaintiffs performed the work as averred in the complaint, it was for and on behalf of S.E. Ferebe, who was an independent contractor acting solely for himself, and who was a materialman for this defendant from whom defendant purchased sand under a special contract, and that there was no privity of contract between plaintiffs and defendant; that this defendant has settled in full with S.E. Ferebe for furnishing the sand under the contract with him; that they never saw nor heard of plaintiffs before the commencement of this action, and had nothing to do with the removal of the house and other material from the sand pit.

The answer of Maryland Casualty Company was substantially the same as that of its codefendant.

The case was heard by Judge Mann and a jury at the June, 1933, term of the court of common pleas for Orangeburg county. At the conclusion of the taking of the testimony, a motion on behalf of defendants was made for the direction of a verdict. The motion was refused, and of his own motion Judge Mann directed a verdict for plaintiffs.

The appeal challenges the action of the trial judge by six exceptions, with numerous subdivisions. In the opinion of this court, if S.E. Ferebe was a subcontractor under Cornell-Young Company, there can be no question that Cornell-Young Company is liable to plaintiffs.

The record shows a written contract between Cornell-Young Company as principal and S.E. Ferebe by the terms of which Ferebe agreed to furnish all sand required for the paving with cement of sections of the described highway for which he was to be paid at the rate of 80 cents per ton.

A subcontractor is one to whom the principal contractor has for a consideration, let the right to do a part of the work the principal has contracted to do. In this instance Cornell-Young Company contracted to construct a section of a highway. Constructing does not mean simply the manual labor and mechanical work expended in building the roadway. By the terms of the contract and specifications, it meant the providing of all the things necessary to doing the act of building the road--teams, carts, labor, material, etc. In the construction of this road it was necessary to have the ingredients which go to make up the cement with which the road was to be paved. The contract made it obligatory on the part of the Cornell-Young Company to furnish all these things. Sand was an essential ingredient. They contracted with S.E. Ferebe to furnish it. How can it be denied that he is a subcontractor? It is a provision of the contract between Cornell-Young Company and the state highway department, as evidenced by the specifications, that the "contractor is the party of the second part acting directly or through his agents, employees or sub-contractors." It is a condition of the contract that Cornell-Young Company should not sublet any part of their contract without the written consent of the highway...