National Equipment Corporation v. Pinnell
| Decision Date | 23 January 1934 |
| Docket Number | 7619. |
| Citation | 172 S.E. 790,114 W.Va. 558 |
| Parties | NATIONAL EQUIPMENT CORPORATION et al. v. PINNELL et al. |
| Court | West Virginia Supreme Court |
Submitted January 16, 1934.
Rehearing Denied Feb. 27, 1934.
Syllabus by the Court.
Plaintiffs seeking common object by means of suit, though they be not united in interest with each other, may join as plaintiffs.
Claimants against highway contractor and surety, though having separate and distinct claims, may properly join in same suit.
Highway contractor's surety held not liable for purchase price of dumptors which were regular equipment necessary for performance of road work undertaken (Code 1931, 38-2-39).
Highway contractor and his surety are liable for repair work and repair parts incident to use of subcontractor's regular equipment while employed in construction of public road (Code 1931, 17-4-16).
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, 106 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 & McClintic, 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 curiæ.
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 dumptors. The Smiths also owed plaintiff Bluefield Supply Company an account on that date of $6,431.81. The account embraced repairs on the dumptors general mechanical supplies, and the rent on certain pieces of machinery used in this work. The circuit court found for the respective plaintiffs the several sums above enumerated and decreed recovery thereof from all of the defendants. The principal contractors and the surety appealed.
The appellants contend that the bill is multifarious because the claims of the two plaintiffs are separate and distinct. The bond of the contractors is for the benefit of all who have claims against them. In order to preserve that common interest, it is essential that all claimants be brought into the same suit. In such event, it is permissible to join them as plaintiffs. Lefever v. Thomas, 69 W.Va. 88, 92, 70 S.E. 1095; Liberty Coal Co. v. Bassett, 108 W.Va. 293, 150 S.E. 745.
The appellants claim that the performance of the dumptors did not equal the representations which the equipment corporation made to the Smiths. The corporation counters that failure of performance, if any, was due solely to the failure of the Smiths to render proper service to the dumptors. There is a mass of testimony pro and con. On this, the finding of the circuit court is against the claim, and we cannot...
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