Ohio Valley Builders Supply Co. v. "Wetzel Constr. Co. S.
| Decision Date | 17 December 1929 |
| Docket Number | (No. 6432) |
| Citation | 108 W.Va. 354 |
| Court | West Virginia Supreme Court |
| Parties | Ohio Valley Builders Supply Company v. "WetzelConstruction Company et als. |
Where two 'companies engaged in road construction work agree that a proposal to do certain work shall be made by one of them to the State Road Commission for the benefit of both, and such proposal is accepted by the commission and a contract is entered into between the commission and the company making the proposal and in pursuance thereof, the two companies will be considered as joint adventurers in the project, (p. 356.)
Joint Adventurers Having Defaulted, Other, Which Took Over and Completed Work, Held Not Liable for Use of Defaulting Company's Equipment.
Where, pursuant to the arrangement stated in syllabus one, the company not making the proposal undertakes to discharge its agreed part of the construction work, but proceeds in such unsatisfactory manner to both the State Road Commission and the other company that such other company properly takes over the defaulting company's portion of the job and completes it for its benefit, using the defaulting company's equipment and material which it had placed on the ground to be used in the work, and the active company accounts to the defaulting company, under supplemental agreement, for the amount received from the Road Commission for such defaulting company's portion of the work, over and above the amounts that had already been paid to it and the amount necessarily expended to complete its portion of the work, the defaulting company is not entitled to recover from the active company rent for such use of said equipment, (p. 356.)
tained on Appeal When Contrary to Plain Preponderance of Evidence.
A finding of fact of a trial chancellor will not be sustained on appeal when contrary to a plain preponderance of the evidence, (p. 361.)
Appeal from Circuit Court, "Wetzel County.
Suit by the Ohio Valley Builders' Supply Company against the Wetzel Construction Company and others. From the decree, defendants appeal.
Reversed and rendered.
Willis & Ball and Larrick & Lemon, for appellants. W. J. Postlethwait and E. H. Yost, for appellee.
In June, 1926, Wetzel Construction Company, a corporation, entered into a contract with the West Virginia State Road Commission to build and complete, according to plans then on file in the office of the said Commission, a public road in the county of Pleasants, State of West Virginia, known as the St. Marys-Wood County Line Road Project No. 3078-B. Thereupon, the said construction company entered into a contract with the Ohio Valley Supply Company, a corporation, whereby the said supply company was to do the concrete work and certain excavating at prices specifically set forth in said agreement. This latter agreement was formally entered into pursuant to an arrangement that had been made between the two companies prior to the time that the construction company submitted its proposal to the State Road Commission and was awarded the contract. Under the preliminary arrangement the supply company set forth and tabulated the prices at which it would undertake to do the concrete work and other work which it later contracted to do, and its said figures were carried by the construction company into its proposal to the State Road Commission. Thus, though the supply company was not known in the contract between the construction company and the Road Commission, it was directly interested therein. The supply company therefore comes into this litigation not as a sub-contractor of the construction company, but more strictly as a co-adventurer with it in the undertaking.
The work was entered upon by both companies, each concerning itself about the portions of the work, which, pursuant to the arrangement between them, it was to be responsible for. On the 16th day of September, 1926, II. E. Snyder, division engineer of the State Road Commission, by written notice, required the Wetzel Construction Company to remove from the job for alleged incompetence, J. E. Yoho, who was the supply company's superintendent on the ground in charge of the work which it had undertaken. The division engineer's notice pertained only to Yoho, but the construction company says that its understanding from the engineer at the time was that he was meaning to require discharge not only of Yoho but of his principal, the supply company. At any rate the construction company gave the matter the latter construction and not only dismissed Yoho but forthwith assumed entire responsibility for the completion of the supply company's portion of the job as well as of its own portion. In due time it discharged the entire contract by completing all the work required under it.
It is contended by the construction company that on the 18th of September, it effected an arrangement with the supply company by which the construction company in proceeding with the completion of the portion of the work which the supply company had undertaken was to use the supply company's equipment and material on the ground, was to keep a separate account of the cost of the completion of the supply company's portion of the work, and when it should be completed, the profit, if any, on that portion of the work was to be paid to the supply company, and if there was a Joss the bond of the supply company would be proceeded against. That any fcuch arrangement was made is denied by the supply company, and the finding of the trial chancellor would seem to sustain such denial. We are of opinion, however, that the evidence on this point preponderates in favor of the contention urged by the construction company, though we do not deem it necessarily controlling of the controversy.
On the 9th day of October, 1926, the supply company caused a notice to be served on the construction company charging the construction company with having breached the contract between the two companies by terminating the supply company's connection with the work on September 16th, and making demand of the construction company for the total cost of all work done, materials furnished and money expended by and on behalf of the supply company up to and including the 16th day of September. The said notice was accompanied by an itemized account showing a total of nearly $17,000.00 claimed. This claim was ignored by the construction company.
On the 14th day of October, 1926, the Wetzel Construction Company executed to M. II. Willis, trustee, a deed of trust on certain machinery and equipment therein itemized, to secure the First National Bank of New Martinsville, payee, and T. A. Shuman, N. G. Myers and I. Myers, endorsers, in the payment of two promissory notes aggregating $9,700.00, one of said notes being dated the 4th day of September, and the other dated the 14th day of October, 1926. It is in evidence that the notes were given for money borrowed by the construction company from the bank for the purpose of use on the work of construction herein involved.
The supply company instituted this suit at January rules, 1927. There are a bill, supplemental bill and second supplemental bill. It is alleged, inter alia, that the supply company was not at fault; that the construction company breached the contract between the two companies by supplanting the supply company on the job on the 17th of September; that about $17,000.00 was due to the supply company from the construction company for the use of machinery and equipment, and for material used and labor expended by the supply company up to the 17th day of September; that the construction company was insolvent at the time it executed the aforesaid deed of trust on the 14th of October, and that consequently the said trust constituted a fraudulent preference. The major prayer was for a decretal judgment for the amount claimed by the plaintiff to be due to it from the construction company, and for cancellation of the said deed of trust in so far as it constituted a preference among the creditors of the construction company. By answer the construction company denied liability to the supply company except in comparatively small amount as hereinafter more fully noted, and denied that it was insolvent or that it attempted to create a preference among its creditors. A mass of depositions was taken. By decree entered the 12th day of September, 1928, the trial court found the construction company to be indebted to the supply company in the sum of $12,554.94 with interest from the date of said decree, and further found that the said deed of trust was made by the construction company to hinder, delay and defraud its creditors, and especially the supply company. In addition to a decretal judgment for the amount aforesaid, the decree set aside and held for naught the said deed of trust in so far as the demand of the supply company was concerned. From that decree the Wetzel Construction Company, First National Bank of New Martinsville, T. A. Shuman, N. (t. Myers and I. Myers prosecute this appeal.
In our opinion, the evidence does not sustain the allegation of the plaintiff's bill that the construction company was insolvent at the time...
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