Silver v. Harriss
| Decision Date | 31 October 1927 |
| Docket Number | 28442 |
| Court | Louisiana Supreme Court |
| Parties | SILVER v. HARRISS et al |
Rehearing Denied January 18, 1928
Appeal from Fifth Judicial District Court, Parish of Franklin; John R. McIntosch, Judge.
Concursus by H. M. Silver against W. H. Harriss, the United States Fidelity & Guaranty Company, C. E. Tillman, and others. From a judgment for plaintiff and certain other claimants against defendants Harriss and the Fidelity & Guaranty Company and judgments nonsuiting certain other claimants and reducing the claim of defendant Tillman, the Fidelity & Guaranty Company the nonsuited claimants, and defendant Tillman appeal.
Amended in part, and affirmed in part.
Theus Grisham & Davis, for appellant U.S. Fidelity & Guaranty Co.
Thigpen, Herold, Lee & Cousin, for appellee.
T. V. Berry, for defendants, claimants.
The police jury of the parish of Franklin and the state highway commission entered into a contract with one W. H. Harriss to construct in said parish a portion of the Winnsboro-Rayville highway. The United States Fidelity & Guaranty Company became surety on the contractor's bond, and both contract and bond were duly recorded. The contractor sublet to one H. M. Silver a portion of the work which he had undertaken to do.
Subsequently, the contractor defaulted; all parties interested being legally notified of the default. Thereafter the surety company completed the road at its own expense.
The subcontractor and a number of laborers and materialmen timely recorded their claims, duly verified, against the contractor, and, at the same time, filed copies of their respective claims with the contractor, surety company, the parish authorities, and the highway commission.
These claims remaining unpaid, the subcontractor instituted this suit for a concursus, in which all the interested parties were cited to the end that their respective rights might be judicially determined. The parties impleaded joined issue; and the highway commission deposited in the registry of the court an amount in its possession remaining due under the contract.
The court below rendered judgment in favor of the plaintiff, Silver, and certain other claimants, with the right to participate pro rata in the fund deposited in the court, and against the contractor and the surety company in solido, but limiting the liability of the surety company to the amount of the bond. The other claimants were nonsuited.
From this judgment, the surety company, the claimants who were nonsuited, and one claimant whose demand was reduced have appealed. Plaintiff has answered the appeal, asking that the judgment be amended by striking therefrom the limitation of liability on the part of the surety company.
The first complaint of the surety company is that the court below erred in holding that the claim of the plaintiff is protected by the contractor's bond.
The contract was executed, and this suit was brought, under the provisions of Act 224 of 1918; and it is the contention of the surety company that the bond exacted by the statute does not cover a subcontractor, except to the extent of the labor employed by, and the material furnished to, him in the performance of the public work.
The title of the act declares, among other things, that the authority having the work done shall --
"* * * exact a bond * * * for * * * the payment of all persons doing work, performing labor or furnishing material therefor; providing for the manner in which" the said authority "shall proceed where there is money in its hands and a sworn account filed by any subcontractor," etc.
Section 1 of the statute deals with the form of contract, provides for the furnishing of bond by the contractor, and for the recordation of the contract and bond. It reads, in part, as follows:
"* * * To require of the contractor a bond, * * * 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. * * *"
Section 2 of the act sets forth the manner in which the rights of interested parties may be preserved against the funds in possession of the authority having the work done. It provides, in part, as follows:
Section 4 specifies the court having jurisdiction and the method of procedure. It provides for the filing in the proper court of a petition by the authorities, "citing such claimants and the contractor, subcontractor and surety on the bond. * * *"
The foregoing are the pertinent provisions of the statute. Plaintiff argues that, in pursuance of them, the bond exacted of the contractor is both for and to the subcontractor -- to him, in so far as there may be any moneys due him; and for him, in so far as there may be any moneys due by him. The argument appears to be sound.
The object of the statute, as indicated by its title, is to protect persons doing work, performing labor, or furnishing material for the construction, erection, alteration, or repair of public works, by requiring the authority having the work done to exact bond for the payment of all such persons, by setting forth the manner in which the authority having money in its possession shall proceed when a "sworn account" is "filed by any subcontractor, or person, firm, or corporation doing work, performing labor or furnishing material therefor" (writer's italics), and by providing that the rights of the respective claimants shall be settled in concurso before the proper court.
It is true the statute declares that the obligation of the bond shall be for the payment of all moneys due by subcontractors, as well as by the contractor, for work done, labor performed, or materials furnished. But nowhere does it indicate that a subcontractor to whom money may be due by the contractor is not entitled to the benefit of its provisions. On the contrary, the broad language of the act evidences, unmistakably, that it was the intention of the lawmaker to protect all the creditors, including subcontractors, of the contractor for doing any work, performing any labor, or furnishing any materials in the execution of the public work undertaken by him.
The court said, in State v. Rose, 125 La. 462, 51 So. 496, 26 L. R. A. (N. S.) 821, that:
"The word 'work' has a much more comprehensive meaning than the term 'labor,' and has been defined to mean to exert one's self for a purpose, to put forth effort for the attainment of an object, to be engaged in the performance of a task, duty, or the like; and, as thus defined, covers all forms of physical or mental exertions, or both combined, for the attainment of some object other than recreation or amusement."
So that when the statute accords its benefits to all persons, natural or artificial, who may have done any "work" or performed any "labor," it is clear that it recognizes the distinction between the terms, and that the use of the former is intended to cover a broader field of activity than the use of the latter; the word "work" including within its scope something more than mere physical exertion which falls under the protection of the word "labor" as used in the act.
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