Royce Kershaw, Inc. v. State

• Decision Date: 28 September 1936
• Docket Number: 31983
• Citation: 176 Miss. 757,169 So. 690
• Court: Mississippi Supreme Court
• Parties: ROYCE KERSHAW, INC., et al. v. STATE, TO USE OF DAY, et al

169 So. 690

176 Miss. 757

ROYCE KERSHAW, INC., et al. v. STATE, TO USE OF DAY, et al

No. 31983

Supreme Court of Mississippi

September 28, 1936

(In Banc.)

HIGHWAYS.

Suit against highway contractor and his surety by subcontractors and persons who furnished materials, supplies, and labor in construction of highway held not to lie before notice of final settlement by state highway commission with contractor had been published (Code 1930, secs. 5971-5976).

SMITH C. J., dissenting.

HON THOS. H. JACKSON, Judge.

APPEAL from circuit court of Monroe county HON. THOS. H. JACKSON Judge.

Suit by the State of Mississippi, to the Use of C. C. Day, and others against Royce Kershaw, Incorporated, and others. From an adverse judgment, the defendants appeal. Reversed and dismissed.

Reversed and dismissed.

Watkins & Eager, of Jackson, for appellants.

This suit is barred by the statute of limitations.

Suit could not be brought on this bond against these defendants save within one year after final settlement.

Marquette Cement Co. v. F. & D. Co., 158 So. 924; Dixie Minerals Corp. v. Dixie Asphalt Co., 159 So. 562; Art. 48 (A), No. 25, Laws of Maryland; 59 C. J. 1025-1030; Briscoe v. Buzbee, 163 Miss. 574; I. C. R. R. Co. v. Middleton, 109 Miss. 199; Robertson v. Texas Oil Co., 141 Miss. 356; Foreman v. Wheatley, 113 Miss. 555; Whitebird v. Eagle-Picher Lead Co., 28 F.2d 200; U. S. v. Ala., etc., R. Co., 35 L.Ed. 1134; State v. Middletown Hyd. Co., 151 N.E. 653; Coombe v. U.S. 3 F.2d 714; White County v. Gwin, 36 N.E. 237; 59 C. J. 944, 1124-26, 1129, 1092, 1093, 1087-89; Red River Const. Co. v. Pierce Pet. Corp., 115 So. 752; section 5973, Code of 1930; Thompson v. U.S. 258 F. 196; State Public Utilities v. Early, 121 N.E. 63; U. S. v. McCord, 59 L.Ed. 893; Baker Contract Co. v. U.S. 204 F. 397.

There was no waiver of the statute of limitations on the part of either of the defendants below.

17 R. C. L., sec. 243, page 884; 37 C. J., sec. 33, page 726; St. Joseph, etc., R. Co. v. Elwood Co., 203 S.W. 680; Carter v. Canty, 166 P. 346; Kemple v. Ind. Acc. Comn., 171 P. 426; U. S. v. Scheurman, 218 F. 915; U. S. v. Boomer, 183 F. 726; G. & S. I. R. Co. v. Bradley, 110 Miss. 162; National Surety Co. v. American Cement Co., 147 So. 158.

The court below committed error in rendering a judgment for appellees in this cause since proper process was not had in that there was no publication of the pendency of this cause in Lowndes county.

Sections 1395, 1595 and 5976, Code of 1930; U. S. F. & G. Co. v. Mobley, 143 Miss. 512; Excello Feed Milling Co. v. U. S. F. & G. Co., 145 Miss. 599.

This suit should be reversed because plaintiff below had no cause of action.

Sections 5973, 5972, Code of 1930; 37 C. J. 686; U. S. v. McCord, 59 L.Ed. 893; Dixie Minerals Corp. v. Dixie Asphalt, 159 So. 562; U. S. F. & G. Co. v. Plumbing Wholesale Co., 166 So. 529.

Leftwich & Tubb, of Aberdeen, for appellees.

This suit is not barred. This is a suit on a public contractor's bond. It is based on sections 5971, et seq. of the Code of 1930. The defendants do not challenge the right of the use of plaintiffs at bar to maintain this suit as provided in sections 5971 and 5972, but their defense is that the suit was not brought within one year from the date of the completion and final settlement of the work, to-wit, one year after September 30, 1931, and therefore, plaintiffs are barred. These statutes have been frequently construed by this court so that at the present time they are quite well defined and the rights and remedies thereunder no longer remain in doubt.

Oliver Construction Co. v. Crawford, 142 Miss. 490, 107 So. 877; U. S. F. & G. Co. v. Mobley, 143 Miss. 512, 108 So. 501; U. S. F. & G. Co. v. Yazoo County, 145 Miss. 378, 110 So. 780; Excello Feed Milling Co. v. U. S. F. & G. Co., 145 Miss. 599, 111 So. 94; McElrath & Rogers v, W. G. Kimmons & Son, 146 Miss. 775, 112 So. 164680; Stowell v. Clark, 152 Miss. 32, 118 So. 370; Standard Oil Co. v. National Surety Co., 143 Miss. 841, 107 So. 559; Shuptrine Const. Co. v. Jackson Equipment & Service Co., 168 Miss. 464, 150 So. 795; Marquette Cement Co. v. Fidelity & Deposit Co., 158 So. 924; Dixie Minerals Corp. v. Dixie Asphalt Paving Co., 172 Miss. 218, 159 So. 562.

Section 5971 creates the cause of action in behalf of any person who has supplied labor and material to the contractor or any sub-contractor on the job and who has not been paid. The remedy to enforce this cause of action is provided for in the succeeding sections. Section 5972 provides that the obligee: in the bond shall have the first right to sue thereon for the period of six months from the completion and final settlement of the contract. Then, any person who may have supplied labor and materials and who has not been paid, may make application to the obligee in the bond, in this case the state highway commission, for a copy of the contract and bond, which he may use for the purpose of the suit. That was done in the present case.

No suit was by the state of Mississippi or the State Highway Commission filed within six months from the date of the completion and final settlement of the work under the contract. It is true that this work was completed and final settlement made on September 30, 1931, and that the present suit was not brought until April 5, 1933. It is also true that the State Highway Commission did not publish notice to the effect that the work under this contract had been completed and final settlement made on September 30, 1931. There was no notice to this effect published in any newspaper in the county or district where the work was performed nor anywhere else. There is no dispute about these facts. Appellants and appellees agree thoroughly about them.

It will be observed that under the plain unambiguous language of section 5973, taking the entire section and construing all of it together, and with the plain meaning of the words, that the period of limitation within which the suit shall be brought does not begin to run until the obligee in the bond shall have made final settlement and published notice thereof in some newspaper published in the county where the work is performed, or if there be no such newspaper in the county, then in some other newspaper having a general circulation in said county.

Oliver Const. Co. v. Crawford, 142 Miss. 490, 107 So. 877; Marquette Cement Co. v. Fidelity & Deposit Co. , 158 So. 924; Dixie Minerals Corp. v. Dixie Asphalt Paving Co., 172 Miss. 218, 159 So. 562.

There is no proof in this record that the State Highway Department has ever construed the statute to mean that it is under no duty to follow it and to make publication of notice of the time of the completion and final settlement, but the letter of the Attorney General seems to indicate that it was not to their interest so to do. In other words, it may be to the interest of the State Highway Department to keep in force for years to come the liability on these bonds, so that any person who may have furnished labor and material shall have the right to sue thereon beyond the period of one year from the date of completion and final settlement.

It will be remembered that in our state decisions and in the federal court decisions these statutes are liberally construed, so as to effectuate their beneficent purposes.

Argued orally by W. H. Watkins, Jr., and Mrs. Elizabeth Hulen, for appellants, and by T. J. Tubb, for appellees

Cook, J., Smith, C. J., dissenting.

OPINION

Cook, J.

This suit was instituted against a highway contractor and his surety by subcontractors, and persons who furnished materials, supplies, and labor in the construction of a highway.

The suit was brought under provisions of article 6, chapter 151, "Contracts for Public Works," Code 1930, sections 5971 to 5976, inclusive. The declaration alleged, and the pleadings throughout admit, that the state highway commission had made final settlement with the contractor, but that no notice of such final settlement had been published, as provided by section 5973, Code 1930. This being true, the cause is ruled by the case of United States Fidelity & Guaranty Co. v. Plumbing Wholesale Co. (Miss.), 175 Miss. 675, 166 So. 529, wherein it was held that, after final settlement of a public contract, no cause, of action accrues against the surety on the contractor's bond until publication of notice of such final settlement. Consequently, the judgment of the court below will be reversed, and the cause dismissed without prejudice to any rights of appellees that may accrue upon publication of notice of final settlement of the contract.

Reversed and dismissed.

DISSENT BY: Smith

Smith C. J., delivered a dissenting opinion.

I am of the opinion that the appellant's cause of action on the bond here sued on had accrued when the action was begun; that United States Fidelity & Guaranty Company v. Plumbing Wholesale Co. (Miss.), 166 So. 529, was wrongly decided and...