Rester v. Moody & Stewart

• Decision Date: 30 March 1931
• Docket Number: 31026
• Citation: 134 So. 690,172 La. 510
• Parties: RESTER v. MOODY & STEWART et al.; In re UNION INDEMNITY CO
• Court: Louisiana Supreme Court

134 So. 690

172 La. 510

RESTER v. MOODY & STEWART et al.;

In re UNION INDEMNITY CO

No. 31026

Supreme Court of Louisiana

March 30, 1931

Rehearing Denied April 27, 1931

Reversed, and suit dismissed in so far as relating to defendant last named.

Benj. W. Miller, of Bogalusa (J. C. Henriques, Manning W. Heard and Wm. E. Westerman, all of New Orleans, of counsel), for relator.

Rich &amp Jones, of Bogalusa, for respondent.

OPINION

ODOM, J.

Moody & Stewart entered into a contract with the state, through the highway commission, to build a portion of a public highway in the parish of Washington, designated as "State Project 412-D," and gave bond to secure the faithful performance of the work with the Union Indemnity Company as surety. The contract was made and the bond written in accordance with Act No. 224 of 1918, as amended by Act No. 271 of 1926.

The contractors bound and obligated themselves to construct and complete the road and to "furnish and deliver all material and do and perform all labor necessary for the satisfactory completion of the proposed improvement."

The bond provided that the principal and the surety "are held and firmly bound in solido to the State of Louisiana and unto all subcontractors, workmen, laborers, mechanics and furnishers of materials and supplies," the condition of the bond being such that if the said contractors "shall well and truly perform and construct * * * and shall pay all sums due on materials and supplies used and for wages earned by laborers and workmen employed upon the work to be done * * * and shall do and perform all the labor and work and shall furnish all material as specified in said contract in strict accordance with all the terms of said contract and the plans and specifications thereto attached and made part thereof * * * then this obligation shall be null and void; otherwise, to remain in full force and effect."

The contractors used motortrucks of their own with which to haul gravel and other material used in the construction of the road, and during the progress of the work employed plaintiff to repair the trucks. In making the repairs, plaintiff furnished labor and used material such as casings, inner tubes, bolts, bearings, rivets, springs, a universal joint, a drive shaft, a brake drum, and a used motor, all amounting in value to $ 154.46.

The contractors failed to pay plaintiff's bill, and he brought this suit in Washington parish, where the work was done, against the contractors and the surety for the amount of the bill, praying for judgment against them in solido.

Both defendants were cited and served. The contractors made no appearance and judgment went against them by default. But the surety company excepted to the jurisdiction of the court ratione personae on the ground that its Louisiana domicile was in the parish of Orleans, and that therefore it could not be sued in the parish of Washington.

This exception was overruled. The surety company then excepted to plaintiff's petition on the ground that it set out no cause and no right of action, which exception was also overruled. The surety then filed answer in which it set up the special defense that a surety on public contractor's bond conditioned as required by Act No. 224 of 1918, as amended by Act No. 271 of 1926, is not liable for debts due by its principal for labor done and supplies furnished and used in repairing machines made use of by the contractor in constructing the work. The lower court gave judgment against the surety, and it appealed to the Court of Appeal (130 So. 254) which affirmed the judgment. The surety applied for a writ of review, which was granted, and the record is before us in obedience thereto.

On Exception to the Jurisdiction.

The contractors, Moody & Stewart, compose a partnership which has its domicile in the state of Mississippi. But it came to Washington parish and there entered into a contract to build a road in that parish, and when this suit was filed the partnership was in that parish, where the suit was brought, and service was made on J. O. Stewart, one of its members. The suit was properly brought against the partnership in Washington parish. Paragraph 4, § 1, Act No. 179 of 1918; paragraph 5, art. 165, Code of Practice.

The Louisiana domicile of the surety on the bond is in the parish of Orleans, but it entered into this contract of suretyship in the parish of Washington, where its principal had engaged to build the road. Its principal being suable in that parish on this cause of action, it was suable there also, under the express provisions of section 8, Act No. 41 of 1894, which reads as follows: "Sec. 8. Be it enacted, etc. No company having signed such bond or bonds shall be permitted to deny its corporate power to execute said instrument, or incur such liability in any proceeding to enforce liability against it thereunder and such company shall be suable in the same jurisdiction as the principal obligee [meaning obligor] on such bond, and citation shall be served on it, or its attorney for service of process, as is by law in such cases provided."

The exception to the jurisdiction was properly overruled.

On the Merits.

The bond is purely statutory, having been given under Act No. 224 of 1918, as amended by Act No. 271 of 1926. The act, as amended, provides that, when public buildings, public roads, or public works of any kind are about to be constructed under a contract in excess of $ 500 (this contract amounted to approximately $ 42,000) at the expense of the state or any public board or body, it shall be the duty of the official representative thereof to reduce the contract to writing and "to require of the contractor a bond, with good and solvent and sufficient surety * * * for the faithful performance of the contract * * * and with an additional obligation for the payment by the contractor and by all subcontractors for all work done, labor performed, or material furnished in the construction * * * of such building, road, work or improvement, and for the payment by the contractor and by all subcontractors for all material or supplies furnished for use in machines used in the construction, erection, alteration or repair of said building, road, work or improvement," etc. (Italics ours). Act No. 224 of [172 La. 515] 1918, § 1, as amended by Act No. 271 of 1926, § 2.

The only change made in the original act by the amendment of 1926 was the insertion of the following clause after the word "improvement": "And for the payment by the contractor and by all subcontractors for all material or supplies furnished for use in machines used in the construction, erection, alteration or repair of said building, road, work or improvement." (Italics ours.)

So that, whereas the original act required the contractor to give bond only for the faithful performance of the contract and "with an additional obligation for the payment by the contractor and by all subcontractors for all work done, labor performed, or material furnished in the construction, erection, alteration or repair of such building, road, work or improvement," the amendment imposes upon the surety an additional burden or obligation, that is, "for the payment by the contractor and by all subcontractors for all material or supplies furnished for use in machines used in the construction, erection, alteration or repair of said building, road, work or improvement." (Italics ours.)

Now it is contended by counsel for plaintiff, and was held by the Court of Appeal, that the act of 1926, which extends or enlarges the obligation of the surety so as to cover "material or supplies furnished for use in machines," covers and embraces labor, material, and supplies used in the repair of machines. The Court of Appeal said:

"The statute, in saying 'having furnished material or supplies for use in any machine used in the construction of any * * * road,' obviously means materials and supplies for use on any machine used in the construction or repair of any road." (Italics ours.)

And again:

"The word 'in,' as used in the act, evidently has the same meaning as the word 'on'; otherwise the amending act would not accomplish what was evidently intended."

We think the court erred in its interpretation of the amendment.

The words of a statute "are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words." Civ. Code, art. 14.

The word "in," in its most usual significance and popular use, means inclosed or surrounded by limits, as in a room. When we say a person is in a room we mean that he is within or on the inside of the room. If we are looking for a man and are told that he is in the house or a house, we would expect to find him on the inside of or within the house. In ordinary parlance the word "in" means on the inside of or within.

According to Webster the word "in" is sometimes equivalent to "on." He uses this illustration: "This use of the word is frequent in the scriptures, as 'let fowls multiply in the earth.' This use is more frequent in Europe than in America. We generally use 'on' in all similar cases, and this is most correct."

The word "on," as generally used and understood, has an altogether different meaning. Webster says it means "being in contact with the surface or upper part of a thing and supported by it; placed or lying in contact with the surface; as, my book is on the table; the table stands on the floor; the house rests on its foundation; we lie on a bed or stand on the earth."

If we were told that an article was on a trunk we would not expect to find it in or within the trunk, but on the top of it. These words "in" and "on," when used as prepositions, have...