Southern Surety Co. v. Ft. Lupton Mercantile Co.

• Decision Date: 13 September 1926
• Docket Number: 11432.
• Citation: 80 Colo. 80,249 P. 263
• Parties: SOUTHERN SURETY CO. v. FT. LUPTON MERCANTILE CO.
• Court: Colorado Supreme Court

249 P. 263

80 Colo. 80

SOUTHERN SURETY CO. v. FT. LUPTON MERCANTILE CO.

No. 11432.

Supreme Court of Colorado, En Banc.

September 13, 1926

Rehearing Denied Oct. 11, 1926.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Action by the Ft. Lupton Mercantile Company against the Southern Surety Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

W. E. Clark, of Denver, for plaintiff in error.

Crump &amp Riley, of Denver, for defendant in error.

SHEAFOR J.

Defendant in error, as plaintiff, brought suit against plaintiff in error, as defendant, in the district court, and the parties will be designated here as there.

The complaint sets forth eleven causes of action, the first being for goods sold and delivered by plaintiff to White & Johnson a copartnership, and to the White & Johnson Construction Company, a corporation. The other ten causes of action were for goods sold to, and labor performed for, the White & Johnson Construction Company, by various persons, the claims and demands sued upon having been duly assigned to the plaintiff.

R. A. White and A. L. Johnson, as copartners, under the firm name of White & Johnson, were doing business on August 7, 1922, and continued to do business as such copartnership until October 7, 1922, when the copartnership was dissolved and the copartners incorporated under the name of the White & Johnson Construction Company, the corporation taking over the assets, business, and contracts of the copartnership.

On August 7, 1922, the state of Colorado, acting through its state highway engineer, entered into a written contract with the firm of White & Johnson for the construction of federal aid project No. 226-A, consisting of a concrete paving project something over eight miles in length, beginning about three and a half miles north of Brighton, and extending northward through Fort Lupton. White & Johnson, for an agreed price, were to furnish all material and perform all the labor necessary for the full completion of the project. This work will be herein designated as project A. The firm of White & Johnson, with the defendant as surety, on August 7, 1922, entered into and executed to the state of Colorado, a certain bond in the sum of $219,300, for the performance of the contract, which bond was duly accepted and approved, and conditioned that:

If White & Johnson 'shall and will at all times well and faithfully discharge his or their duties under said contract, and shall and will perform all the obligations thereof, and shall and will indemnify and save harmless the state of Colorado, and all persons whomsoever from any and all damage or loss, which the said state of Colorado or any other persons whomsoever may or shall suffer by reason of the default of the contractor in the performance of this contract, or by reason of any neglect or carelessness, act, or omission on the part of said contractor, his agents, servants, or employees, or any of them, in the performance of this contract, and shall and will indemnify and save harmless the employees, laborers, materialmen, and all holders of just claims against the said principals, arising out of the performance of this contract, against the failure of the said principals to pay them all sums due them, and shall and will indemnify and save harmless the said state of Colorado, to the extent of any and all payments in connection with the carrying out of said contract which the said principals may be required to make under the law, and shall and will in all respects keep and comply with the provisions of the law of said state protecting and securing the claim of laborers, subcontractors, and materialmen, and save said state of Colorado harmless therefrom, then and in that event these presents shall become void, otherwise to be and remain in full force and effect.'

Or or about June 26, 1923, the White & Johnson Construction Company entered into a written contract with the state, through its engineer, by the terms of which, for an agreed consideration, the construction company agreed to furnish all material and do all work necessary for the construction and completion of federal aid project No. 226-B, which consisted of a paving project something over two miles in length, extending north and south of Platteville. This will be designated herein as project B. The White & Johnson corporation, with defendant as surety, entered into a certain bond in the sum of $81,800 for the performance of said contract, which was approved and accepted by the state, and conditioned that:

If the White & Johnson Construction Company 'shall at all times duly and faithfully discharge his or their duties under said contract, and shall duly and faithfully perform all the obligations thereof, and shall and will indemnify and save harmless the state of Colorado, and all persons whomsoever from any and all damage or loss which the said state of Colorado or any other persons whomsoever may or shall suffer by reason of the default of the contractor or any one acting for him as subcontractor or otherwise in the performance of this contract, or by reason of any neglect or carelessness, act, or omission on the part of said contractor, his agents, servants, or employés, his subcontractor or subcontractors, or any of them, in the performance of said contract, or any portion thereof, and if the said contractor, his subcontractor or subcontractors, and each and all of them shall duly pay for all labor, materials, team hire, sustenance, provisions, provender, or other supplies used or consumed in the performance of the work contracted to be done or any part thereof, these presents shall become void, otherwise to be and remain in full force and effect.'

These bonds were set out in full in the first cause of action. The complaint alleged that all the goods therein mentioned were used by the contractors in the building and construction of the highways referred to, and further alleged:

'That it is impossible for plaintiff to say what portion of said goods, wares, and

...