Norton v. Maryland Casualty Co.

• Citation: 32 S.W.2d 172,182 Ark. 609
• Decision Date: 03 November 1930
• Docket Number: 213
• Parties: NORTON v. MARYLAND CASUALTY COMPANY
• Court: Arkansas Supreme Court

32 S.W.2d 172

182 Ark. 609

NORTON v. MARYLAND CASUALTY COMPANY

No. 213

Supreme Court of Arkansas

November 3, 1930

Appeal from Desha Chancery Court; E. G. Hammock, Chancellor affirmed.

Decree affirmed.

R. W Wilson, for appellant.

Ashley Cockrill, for appellee.

OPINION

MEHAFFY, J.

This is an appeal from a decree of the Desha Chancery Court in favor of the appellee. In August, 1926, J. T. Carr entered into a contract with the State Highway Commission to construct a road in Desha County 21.18 miles in length. The contractor executed a bond with the Maryland Casualty Company as surety for the faithful performance of the contract and the payment of all bills for labor and material entering into the construction of said road or used in the course of the performance of the work. The contractor did not get estimates as he claimed he should have gotten, and he was unable to pay bills for labor and material. He requested appellant to assist him, and on March 1, 1927, appellant let the contractor have $ 1,000 to meet his payroll on the road that he was building. On June 11, 1927, appellant indorsed note of Frank Carr, son of the contractor, for $ 500, which he afterwards had to pay. This money was also borrowed to meet payrolls. On July 14, 1927, appellant let contractor have $ 3,000 to meet payrolls. On the same day, July 14, Carr gave appellant a note for $ 4,000 for the $ 1,000 advanced on March 1, and the $ 3,000 which appellant had let him have on July 14, but did not include the $ 500 above mentioned. There was written in the corner of the note: "This note is given as advanced money for road work." Carr told them to pay it out for actual labor and material, and appellant testified that he was to take the place of the laborer on the payroll when they got the estimate. Carr was unable to complete the job, and on December 12, 1927, he made an assignment to the Maryland Casualty Company. The following is the assignment:

"ASSIGNMENT

"I J. T. Carr, hereby assign to Charles F. Guild, representing the Maryland Casualty Company, all estimates, funds and moneys now due or hereafter becoming due under contract for the construction of a gravel road from McGehee to Watson in Desha County, Arkansas, known as 'Federal Aid Project No. 189-A,' and authorize the State Highway Commission of the State of Arkansas to make out and deliver all future estimates and to pay all such sums due thereon under said contract to said Charles F. Guild. Dated this 12th day of December, 1927."

This assignment was signed by J. T. Carr and witnessed by J. T. Harris. After this assignment the Maryland Casualty Company took over the contract and work and completed the construction of the road. Some time in the latter part of 1927, after consulting his attorney, appellant went to McGehee and had a conversation with J. T. Carr and Charles F. Guild, the representative of the Maryland Casualty Company. Appellant went to McGehee to institute suit for his money if he could not get some kind of promise. He was, according to his testimony, assured by Carr and Guild that the job was in good shape, and they would pay all the indebtedness due the different ones. Carr is indebted to appellant in the sum of $ 4,400. The court entered judgment against J. T. Carr but held that the Maryland Casualty Company was not liable, and dismissed the complaint against it.

It is first contended by appellant that the surety company is liable under the assignment from Carr. We find nothing in the assignment to justify this claim, and appellant has called our attention to nothing upon which to base this claim.

Appellant next urges that the Maryland Casualty Company is liable under express agreement to pay appellant's claim. The evidence on this question is in conflict, but, if appellant's evidence was not contradicted, it is not sufficient to sustain his contention. There is no evidence that appellant promised appellee that he would not bring suit if appellee would promise to pay. The evidence of appellant only tends to show that the job was in good shape and that he would get his money. Doubtless both Carr and Guild thought that was true at that time. Nothing was done to induce appellant to postpone bringing suit. If appellee was liable, a promise would add nothing to the...