Nat'l Equip. Corp. v. Pinnell, 7619.

• Citation: 172 S.E. 790
• Decision Date: 23 January 1934
• Docket Number: No. 7619.,7619.
• Court: Supreme Court of West Virginia
• Parties: NATIONAL EQUIPMENT CORPORATION et al. v. PINNELL et al.

172 S.E. 790

NATIONAL EQUIPMENT CORPORATION et al.
v.
PINNELL et al.

No. 7619.

Supreme Court of Appeals of West Virginia.

Jan. 23, 1934.

Rehearing Denied Feb. 27, 1934.

Syllabus by the Court.

1. "Where plaintiffs * * *seek a common object by means of the suit, though they be not united in interest with each other, there is no misjoinder of parties." Lefever et al. v. Thomas, 69 W. Va. 88, 70 S. E. 1095, point 1 syllabus.

2. "The surety on the bond of a public contractor is not liable for the purchase price or the rental of anything which is or should be a part of the contractor's regular equipment." Rhodes v. Riley et al. (W. Va.) 169 S. E. 525, point 3 syllabus.

3. Code 1931, 17-4-16, makes the contractor and his surety liable for the repair work and the repair parts incident to the use of a subcontractor's regular equipment while employed in the construction of a public road. Hicks v. Randich, 100 W. Va. 109, 144 S. E. 887.

Appeal from Circuit Court, Mercer County.

Suit by the National Equipment Corporation and others against W. L. Pinnell and others. From an adverse judgment, W. L. Pinnell and others appeal.

Judgment reversed as to appellants, and cause remanded, with directions.

Ernest K. James and Campbell & McClin-tic, all of Charleston, Harper & Baker, of Spencer, and Roscoe H. Pendleton and H. E. De Jarnette, both of Princeton, for appellant American Surety Co. of New York.

Arthur F. Kingdon, of Bluefield, for appellees.

Hartley Sanders, of Princeton, as amicus curiae.

HATCHER, Judge.

This appeal involves the obligation of principal contractors and their surety to pay the balance due from subcontractors for machinery used on the work, for repairs on the machinery, and for other mechanical supplies.

About the first of June, 1931, defendants Pinnell & Pfost contracted with the State Road Commission to grade a certain roadway and executed a bond with defendant American Surety Company as surety. Shortly afterwards defendants K. J. Smith & Son were given a subcontract to perform part of the grading. The Smiths then purchased from plaintiff National Equipment Corporation five new "dumptors" (dumping tractors) at the price of $32,325. The dumptors were operated by the Smiths on the work in question until March 1, 1932. On that date the Smiths were due the equipment corporation a balance of $17,243.75 on the purchase price and $1,278.40 for repair parts on the dump-tors. The Smiths also owed plaintiff Bluefield Supply Company an account on that date of $6,431.81...