Natural Rock Asphalt Corp. v. Highways Improvement Corp.
| Decision Date | 06 December 1929 |
| Docket Number | No. 13528.,13528. |
| Citation | 168 N.E. 865 |
| Parties | NATURAL ROCK ASPHALT CORPORATION v. HIGHWAYS IMPROVEMENT CORPORATION et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, St. Joseph County.
Action by the Natural Rock Asphalt Corporation against the Highways Improvement Corporation and others. Judgment for defendants, and plaintiff appeals. Affirmed.Parker Crabill, Crumpacker & May, Graham & Crane, and W. S. Carlisle, all of South Bend, for appellant.
Pickens, Davidson, Gause, Gilliom & Pickens, of Indianapolis, and Seebirt, Oare & Omacht, of South Bend, for appellees.
Appellant furnished material to the Highways Improvement Corporation for use in resurfacing a highway in St. Joseph county. Appellee Metropolitan Casualty Insurance Corporation was surety on the bond of the Highways Improvement Corporation, filed with the bid and contract of the Highways Improvement Corporation. The purchase price of the material was not paid, and this action was brought to recover on the bond. Demurrer to the amended complaint was sustained on the ground that appellant did not comply with the provisions of section 6122, Burns' Ann. St. 1926, by filing its verified claim with the board of commissioners within 60 days after the last material was furnished, and did not bring its suit within one year from the date of filing such verified claim. Appellant refused to plead further, judgment was rendered, and this appeal followed. The error assigned is the court's action on the demurrer.
It is averred in the complaint that the Highways Improvement Corporation entered into a written contract with the board of commissioners of St. Joseph county for furnishing and installing 1,500 tons of Kentucky rock asphalt, which contract is made a part of the complaint. The agreement also provides that the bond of said Highways Improvement Corporation should become a part of said contract, and said bond is also made a part of the complaint.
On July 23, 1926, said Highways Improvement Corporation entered into a written agreement with appellant, for the purchase of said material, which agreement is also made a part of the complaint.
Pursuant to the terms and conditions of each and all of said agreements appellant did furnish to the Highways Improvement Company said material, the agreed price of which was $15,374.34; that all of said material was received and used in the performance of said contract with such board of commissioners, and appellant prepaid the freight thereon in the amount of $4,341.81, making a total due appellant on September 2, 1926, of $19,716.15. The Highways Improvement Company paid on February 14, 1927, $6,121.81, leaving a balance due of $13,594.34 unpaid, which appellant is entitled to recover with interest at 6 per cent. per annum from and after September 2, 1926.
[1] Appellee Insurance Company contends that its demurrer should be sustained because appellant fails to alleged in its complaint that it complied with section 6122, Burns' Ann. St. 1926, which section requires, so far as here involved, that any person, firm, or corporation, to whom money shall be due on account of having furnished any material in the construction of any public improvement, within 60 days after the last item shall have been furnished shall file with such board entering into the contract with the principal contractor for such public work, duplicate verified statements of the amount owing that no suit shall be brought against a surety or sureties on its bond until the expiration of 30 days after the filing of such verified duplicate statements, and, if such indebtedness shall not be paid in full at the expiration of 30 days, such person, firm, or corporation may bring an action in a court of competent jurisdiction in his or its own name upon such bond, which action shall be commenced within one year from the date of filing of such...
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Aetna Cas. & Sur. Co. v. Geo. L. Mesker Steel Corp., 20419
...history indicates, created more problems and litigation than it has attempted to solve. In the case of Natural Rock Asphalt Corp. v. Highways Imp. Corp. (Ind.App., 1929), 168 N.E. 865 (not reported in the state reports), a similar argument to the one advanced by the appellant, in the case a......
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...v. Highways Improvement Corporation et al. (Ind. App. 1930) 173 N. E. 330, which supersedes the opinion of the same title reported in 168 N. E. 865, and upon which appellant relies. See, also, Concrete Steel Co. v. Metropolitan Casualty Ins. Co., etc. (Ind. App. 1930) 173 N. E. 651;Million ......
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Eagle Indemnity Company v. McGee
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