Sinclair Refining Co. v. Burch

• Decision Date: 14 November 1944
• Docket Number: 46466.
• Citation: 16 N.W.2d 359,235 Iowa 594
• Parties: SINCLAIR REFINING CO. v. BURCH et al.
• Court: Iowa Supreme Court

16 N.W.2d 359

235 Iowa 594

SINCLAIR REFINING CO. v. BURCH et al.

No. 46466.

Supreme Court of Iowa

November 14, 1944

Rehearing Denied Jan. 13, 1945.

Miller Huebner & Miller, of Des Moines, and Jo S. Stong, of Keosauqua, for appellant Maryland Casualty Co.

Thoma & Thoma, of Fairfield, for appellee Iowa State Bank and Trust Co. of Fairfield, Iowa.

G H. Clark, Jr., Sp. Asst. Atty. Gen., for Iowa State Highway Commission.

GARFIELD, Justice.

This is a companion case to Hercules Mfg. Co. v. Burch et al., Iowa, 16 N.W.2d 350, decided this day. The principal distinction between the two cases is that in the Hercules case Burch completed the work but here he defaulted.

The contract here, made May 3, 1940, was for grading on a primary road project in Van Buren county. On May 15 the contractor assigned to Iowa State Bank and Trust Co. of Fairfield all sums to become due under the contract. The assignment secured indebtedness which Burch subsequently incurred to the bank upon which there was owing more than the amount still in the hands of the highway commission. On September 16, 1940, at Burch's request, the highway commission declared the contract in default. The balance of the work was relet by the commission to Booth and Olson.

Following Burch's default, Maryland Casualty Co., surety on the contractor's bond in the sum of $22,500, paid claims for labor and material furnished Burch totaling $4393.25. These claims were then assigned to the surety. During June and July the highway commission paid the Fairfield bank on the Burch contract $17,294.24, 90 per cent of three estimates totaling $19,215.82. Ten per cent of this last figure, $1921.58, was retained by the commission in accordance with the contract. There was also $1347.53 unpaid on the Burch contract at the time of his default, in addition to the 10 per cent previously retained. The total in the hands of the commission at the time suit was brought was $3269.11 of which $2056.33 was 10 per cent of the full amount earned by Burch. It was conceded the surety as subrogee of laborers and materialmen paid by it was entitled to this $2056.33. The contest is over the balance of $1212.78 in the commission's hands. The trial court awarded this amount to the assignee bank. The surety has appealed.

All contentions appellant makes here are disposed of by our opinion in Hercules Mfg. Co. v. Burch et al., except the claim that since Burch defaulted in performing his contract the entire unpaid amount, not merely the 10 per cent retention fund, is made available by section 10320, Code 1939, for the payment of claimants for labor and material and appellant as their subrogee. In the Hercules case it was not necessary to decide this contention because there Burch fully performed his contract. We there held that the only fund available to claimants for labor and material on a completed contract is the percentage of the contract price which the highway commission is required to retain. The question now before us is whether by reason of section 10320 a different rule prevails where the contractor abandons the work. We think section 10320 does not have the effect appellant claims for it.

The primary rule in interpreting a statute is to ascertain and give effect to the intention of the legislature. Smith v Thompson, 219 Iowa 888, 896, 258 N.W. 190; Keokuk Waterworks Co. v. Keokuk, 224 Iowa 718, 723, 277 N.W. 291; 50 Am.Jur. 201, section 223; 59 C.J. 948, section 568. In determining the meaning of section 10320 it should be considered in the light of the whole chapter (452) and every other section therein. Wood Bros. Thresher Co. v. Eicher, 231 Iowa 550, 560, 1 N.W.2d 655, 660; Ahrweiler v. Board of Sup'rs, 226 Iowa 229, 231, 283 N.W. 889; 59 C.J. 1046, section 620. All provisions of the chapter should be considered as parts of a connected whole and harmonized if possible. Brutsche v. Incorporated Town of Coon Rapids, 218 Iowa 1073, 1081, 256 N.W. 914; In re Estate of Van Vechten, 218 Iowa 229, 234, 251 N.W. 729; Smith v. Thompson, 219 Iowa 888, 895, 258 N.W. 190; 50 Am.Jur. 367, 368, section 363; 59 C.J. 1051, section 621. The purpose or aim of the legislation is also to be considered. Wood Bros. Thresher Co. v. Eicher, supra; 50 Am.Jur. 284, section 303; 59 C.J. 961, section 571.

It is a familiar rule that the manifest intent of the legislature will prevail over the literal import of the words used; that a thing which is within the intention of the lawmakers is as much within the statute as if it were within the letter; and a thing with the letter of the statute is not within the statute unless it is within the intention of the legislature. 50 Am.Jur. 234, 235, section 240; 59 C.J. 964-967, section 573; Sexton v. Sexton, 129 Iowa 487, 488, 489, 105 N.W. 314, 2 L.R.A.,N.S., 708; Oliphant v. Hawkinson, 192 Iowa 1259, 1263, 183 N.W. 805, 33 A.L.R. 1433; McGraw v. Seigel, 221 Iowa 127, 132, 263 N.W. 553, 106 A.L.R. 1035.

Section 10320 states: 'Abandonment of public work--effect. When a contractor abandons the work on a public improvement or is legally excluded therefrom, the improvement shall be deemed completed for the purpose of filing claims as herein provided, from the date of the official cancellation of the contract. The only fund available for the payment of the claims of persons for labor performed or material furnished shall be the amount then due the contractor, if any, and if said amount be insufficient to satisfy said claims, the claimants shall have a right of action on the bond given for the performance of the contract.'

Detaching the second sentence of this section upon which appellant relies from chapter 452 as a whole, the words 'said amount,' italicized by us, refer back to 'the amount then due the contractor,' and purport to give claimants a right of action on the bond only if such amount is insufficient to pay their claims. Considering the chapter as a whole, however, the legislative intent is plain that there is a right of action on the bond if the percentage of the contract price which the public cprporation is required to retain (here 10 per cent) is insufficient to satisfy claims.

Section 10304 directs that such a bond as appellant signed must provide 'The principal and sureties on this bond hereby agree to pay * * * all just claims * * * for labor performed or materials furnished, in the performance of the contract * * * when the same are not satisfied out of the portion of the contract price which the public corporation is required to retain until completion of the public improvement * * *.' The bond signed by appellant here contains this identical provision.

Section 10319 provides: 'Unpaid claimants--judgment on bond. If, afterthe said retained percentage has been applied to the payment of duly filed and established claims, there remain any such claims unpaid in whole or in part, judgment shall be entered for the amount thereof against the principal and sureties on the bond. In case the said percentage has been paid over as herein provided, judgment shall be entered against the principal and sureties on all such claims.' (Italics supplied.)

If we are to harmonize sections 10304, 10319 and 10320, the terms 'the amount then due the contractor' and 'said amount' found in the later section must be construed to refer to the percentage fund required to be retained.

Further, section 10310 states that the contractor shall be paid not more than 90 per cent of the estimates and at least 10 per cent of the contract price will remain unpaid at completion of the contract. As pointed out in our opinion in the Hercules case, section 10311 provides 'the retained percentage of the contract price, which in no case shall be less than ten percent, shall constitute a fund for the payment of claims * * *,' thus impliedly excluding from claimants funds in excess of the 10 per cent. Section 10312 provides for the retention of the 10 per cent following completion of the improvement. This is followed by 10312.1 which states: 'No part of the unpaid fund due the contractor shall be retained as provided in this chapter on claims for material furnished, other than materials ordered by the general contractor or his authorized agent, unless such claims are supported by a certified statement' etc.

It could hardly be claimed that the mere use of the term 'unpaid fund due the contractor' in 10312.1 makes available to claimants more than the percentage required to be retained. Indeed, when we consider there is no provision in ch. 452 that any funds 'shall be retained' except such percentage, it is apparent the term just quoted refers to the percentage required to be retained. The words in 10320 upon which appellant relies, 'the amount then due the contractor,' are quite similar to the term found in 10312.1.

Also as pointed out in our Hercules opinion, other sections than those hereinbefore discussed plainly refer to the 10 per cent retention fund. Section 10313, under which this suit was brought, provides that such an action is brought 'to adjudicate all rights to said fund.' 10315 provides that in such an action, 'The court shall adjudicate all claims. Payments from said retained percentage * * * shall be made in the following order: * * *.' Section 10316 directs that 'When the retained percentage aforesaid is insufficient to pay all claims * * * the court shall * * * order the claims in each class paid in the order of filing * * *.' All these terms we have italicized clearly refer to the 10 per cent retention fund. The words 'unpaid portion of the contract price' in section 10317 also...