Oliver Const. Co. v. Dancy

• Decision Date: 26 January 1925
• Docket Number: 24521
• Citation: 137 Miss. 474,102 So. 568
• Court: Mississippi Supreme Court
• Parties: OLIVER CONST. CO. et al. v. DANCY et al. [*]

102 So. 568

137 Miss. 474

OLIVER CONST. CO. et al. v. DANCY et al. ^[*]

No. 24521

Supreme Court of Mississippi

January 26, 1925

Division B

1 HIGHWAYS. Claimants for labor and material held not to waive protection of contractor's bond by acceptance of duebills from subcontractors.

Claimants for labor performed and material furnished in construction of public road did not waive protection of contractor's bond furnished under Laws 1918, chapter 217, by contractor to whom contract was let, by accepting from subcontractors to whom such contractor sublet the contract duebills constituting merely statements of amounts due for such labor and material.

2 HIGHWAYS. Laborers and materialmen protected by contractor's bond though contractor has sublet work to other contractor.

Contractor to whom contract for construction of public road had been let, and surety on its bond furnished for protection of laborers and materialmen under Laws 1918, chapter 217, could not evade liability under such bond for labor performed and material furnished in construction of road, by subletting work to other contractor.

HON JAS. G. McGOWAN, Chancellor.

APPEAL from chancery court of Benton county, HON. JAS. G. McGOWAN, Chancellor.

Suit by R. F. Dancy and others against the Oliver Construction Company and another. Decree for plaintiffs, and defendants appeal. Affirmed.

Decree affirmed.

Chas. Lee Crum, for appellants.

This suit was instituted under chapter 217, Laws of Mississippi, 1918, the first section of which provides that contractors doing public work in this state shall be required to execute a bond to comply with the contract and, also, to pay all persons who furnish labor or materials used in the contract job. The second section provides: That if no suit shall be brought on this bond by the obligee, which in this case is the county of Benton, "within six months from the completion and final settlement of said contract, then any person supplying therein labor or materials shall, upon application and furnishing affidavit to the obligee that such labor or materials have been supplied and payment not been made, be furnished with a certified copy of said contract and bond, upon which he shall have a right of action" for his claim. The third section provides that such suit "shall not be commenced until after the complete performance of said contract, and final settlement thereof, and shall be commenced within one year after the performance and final settlement of said contract and not later." It, also, provides that if the contract is abandoned by the contractor that suit may be instituted within one year after the abandonment. "But said time for the institution of said action shall not begin to run until the obligee shall have made said final settlement, or determined said abandonment, and published notice thereof in some newspaper published in said county." The fourth section provides that only one suit shall be brought by such laborers and materialmen, that any one having such claim may intervene, provided the intervention is within the one year. The sixth section provides that the defendants and all persons interested may be made parties by publication.

There are many errors which I think the court below committed in the trial of this case, for there were nineteen complainants at the beginning of this suit, but as the claims of only four of the complainants and interveners were allowed, I shall confine my assignment and arguments to points affecting the trial of these claims alone. The claimants whose claims were allowed are as follows: R. F. Dancy decreed two thousand four hundred seventy six dollars, interest and attorney's fees, E. J. Crawford decreed three hundred five dollars and fifty-five cents, interest and attorney's fees, J. D. Dickerson decreed one hundred eighteen dollars and fifty-nine cents, interest and attorney's fees, J. H. Gresham decreed one hundred twenty one dollars and forty-two cents, interest and attorney's fees.

J. H. Gresham's claim. Mr. Gresham stated that he did nothing towards constructing the road under contract, but that his account was for boarding Lansdale and Ackerman. The itemized account of this claimant was never filed as a part of the pleadings in the case, and only filed then as an exhibit to his testimony while he was testifying, and was filed over the objection of appellant. Not one item on this entire account could be used as material to build this road and there was not a moment of labor performed on the contract embraced in this account. This account was not filed in time to enable appellant to answer it and to give this claimant a right of trial at the time the case was tried.

J. D. Dickerson's claim. Mr. Dickerson had taken the note of Lansdale and Ackerman, signed by the firm and by each of them, for his account which he says was for boarding hands to the order of Lansdale and Ackerman. His testimony was objected to promptly because the evidence showed that the consideration of the note was neither for labor nor materials used in building the road, but for boarding hands for Lansdale and Ackerman. There is no evidence that these hands so boarded ever did a day's work on this road project, and if they had the right of action in this kind of suit it is confined to "labor and materials used therein." Therefore, Mr. Dickerson's claim should be disallowed for the meritorious reason that it is shown to be for neither labor nor materials used in constructing the road, and the decree as to it should be reversed and his claim dismissed.

E. J. Crawford's claim. This claim consisted of an open account against Lansdale and Ackerman for one hundred sixty two dollars and two cents, and three notes given by Lansdale and Ackerman, aggregating one hundred forty nine dollars and fifty-three cents. This account nor these notes are anywhere set out in the pleadings, except this reference is made to them: "E. J. Crawford, one hundred forty nine dollars and fifty-three cents, with interest at six per cent from June 22, 1921, until paid; open account of E. J. Crawford for one hundred sixty two dollars and two cents." There is no note nor account attached to the bill and until this late hour there has never been either note or itemized account filed in the case either as evidence or as part of the pleading, and I have never been able to see either the notes or the account. The testimony of Mr. Crawford is incompetent, (1) because there were no notes or accounts on file to authorize his testimony; (2) because he could not say and did not say what the price of his work amounted to; (3) because the other items mentioned by him were neither for material used in the contract nor for labor done on the road. The court below, therefore, erred in refusing to dismiss his claim and I respectfully here ask that the decree in his favor be reversed and his claim dismissed.

R. F Dancy's claim. The only other claim allowed by the court is that of R. F. Dancy which presents issues different from those just discussed with reference to the other three claims. Appellant, however, contends that as Dancy filed his suit in this case before a final settlement had been made with appellant by the county and before the county had published notice of said settlement as provided for by chapter 217, that this entire proceeding is prematurely instituted and for this reason the decree should be reversed and the entire bill dismissed. In stating this case as to Dancy, I call attention to the facts: (1) Dancy made his contract to do the work here sued for directly with Lansdale and Ackerman, and they became liable to him for payments therefore as agents of an undisclosed principal for whom they were working. That after their agency was disclosed, Dancy had the right to sue either the principal or the agent, but only one, and his election to sue one precludes him from suing the other. (2) That Dancy novated the contract by accepting the notes of Lansdale and Ackerman and releasing appellant. (3) In his declaration and bill, Dancy makes out his account against Lansdale and Ackerman and not against appellant, and Lansdale and Ackerman are made defendants by the same method of process as the appellant is, and all are sued in this proceeding alike. (4) The notes sued on and made exhibits to the pleadings are both signed by Lansdale and Ackerman and are in terms different from the terms of the account as to dates of payment, attorneys' fees for collection, and rate of interest, and merge the account into the notes, this extinguishing the account for the labor performed and rendering the note the sole evidence of the debt. These notes were given by Lansdale and Ackerman and accepted by Dancy many months after Dancy had learned that appellant was the principal and Lansdale and Ackerman were the agents. (5) That appellant acquiesced in, agreed to, and ratified this novation by ordering on request of Lansdale and Ackerman that the warrant on funds in the treasury of Benton county belonging to Lansdale and Ackerman be paid to J. W. Crawford, a creditor of Lansdale and Ackerman. (6) That many months after Dancy knew that Lansdale and Ackerman were agents of appellant, he elected to interplead in case No. 1501, in the chancery court of Benton county, in which he pursued to final adverse decree the funds in the hands of the county belonging to Lansdale and Ackerman and which they had ordered paid to their creditor J. W. Crawford. In this suit at bar, Dancy is suing Lansdale and Ackerman on notes given by them alleging in the same suit that they are the agent of appellant. The allegations of the bill show that Lansdale and Ackerman are alone liable to Dancy because of the novation and election of Dancy. (7) That at the time of the novation of the...