State v. C. S. Jackson & Co.

• Citation: 69 So. 751,137 La. 931
• Decision Date: 29 June 1915
• Docket Number: 21211
• Parties: STATE et al. v. C. S. JACKSON & CO. et al
• Court: Supreme Court of Louisiana

69 So. 751

137 La. 931

STATE et al. v. C. S. JACKSON & CO. et al

No. 21211

Supreme Court of Louisiana

June 29, 1915

Rehearing Denied October 18, 1915

J. Zach Spearing, of New Orleans, and J. R. Monk, of Leesville, for appellant United States Fidelity & Guaranty Co.

S. D Ponder, of Many, for appellant C. S. Jackson & Co.

J. S Atkinson, of Shreveport, for appellee Dickson.

R. A Fraser, of Many, for appellees Williams and others.

R. G. Pleasant, Atty. Gen., and Harry Gamble, Asst. Atty. Gen., for the State.

OPINION

PROVOSTY, J.

Act 49, p. 74, of 1910, provides for the construction and maintenance of highways at the joint expense of the state and of the parish wherein the highway is situated. The expense of the work is required to be borne, one-half by the state and one-half by the parish. All work is to be under the supervision of the state board of engineers, and to be done through an officer provided for by the act, to be known as the 'state highway engineer.' The initiative for having any work done is left to the local authorities, who must make written application to the state engineer of highways, who then advertises for bids and makes a contract with the successful bidder. This contract must be 'in the name of the state of Louisiana, signed by the state highway engineer and the contracting parties, with the written approval of the president of the police jury of the parish wherein the work is to be done.' No such work can be undertaken or contract entered into until the police jury shall have agreed in writing to assume its proportion of the cost thereof, nor 'until it shall be first made to appear to the state highway engineer that the money with which to meet the proportion of said expense to be borne by the parish is either already in the hands of the parish treasurer, or will be so in hand and immediately available upon the completion and acceptance of said work.' The contractor is required to furnish bond 'in a sum equal to one-half of the amount of the contract awarded, conditioned that such work shall be performed in accordance with the plans, specifications and the terms of the contract.' Authority is given to the state highway engineer to have the work done by a force employed by himself, if he deems it more advantageous to have it done in that way than through a contractor. Section 7 provides:

'The total cost of all work of highway construction, improvement and maintenance under the provisions of this act shall be paid by the state treasurer upon the warrant of the state highway engineer, * * * out of the fund hereafter created for the purposes of this act.

The parish * * * wherein such work of improvement has been or is being performed shall refund the state one-half of such total cost thereof,' to be paid to the state treasurer by the parish treasurer, etc.

Under the provisions of this act a contract was entered into, in strict accordance with the provisions of the act, with C. S. Jackson & Co., one of the defendants in this case, for the improvement of a highway in the parish of Sabine, and bond was given by the said contractor, with the United States Fidelity & Guaranty Company as surety thereon, in the words following:

'Know all men by these presents, that we, C. S. Jackson & Co., as principal, and the United States Fidelity & Guaranty Company, a surety company authorized to do business in the state of Louisiana, as surety, are held and firmly bound, in solido, unto the state of Louisiana, in the full sum of fourteen thousand dollars, payable in lawful money of the United States, and to this end we hereby obligate our heirs, successors, and assigns.

'Now, the condition of this bond is such that if the said C. S. Jackson & Co., contractor, shall well and truly perform their contract, made and entered into this 25th day of February, 1913, to construct the Many-Ft. Jessup highway in the parish of Sabine, according to the stipulations therein recited, and shall pay all sums due on materials used and for wages earned by laborers and workmen employed upon the work to be done, then, and in that case, the bond shall be null and void; otherwise, to remain in full force and virtue to the canceling of all damages and costs accruing to the state, and to the parish of Sabine, arising through the failure of the contractor to fulfill his contract or to meet the obligations incurred on account of same.

'In faith whereof, we have subscribed this obligation at New Orleans, La., this 8th day of March, A. D. 1913.'

C. S. Jackson & Co., after partial execution of the work, defaulted on their contract, leaving many laborers and materialmen and subcontractors unpaid; and these creditors recorded their claims in the clerk's office of the parish of Sabine for the purpose of conserving such rights as they might have against all parties concerned, and such liens, privileges, or mortgages as they might be entitled to upon the work itself. The contract was subsequently completed by the surety company.

And thereupon the state of Louisiana and the parish of Sabine jointly filed the present suit, which is simply a concursus; that is to say, the state has deposited in court the balance of $ 7,070.02 due to the surety company for having completed the contract, and has cited the surety company, C. S. Jackson & Co., and the laborers, materialmen, and subcontractors whose claims are recorded to come and litigate among themselves their rights to this fund.

The surety company and C. S. Jackson & Co. filed an exception to the jurisdiction of the court ratione personae. The same having been overruled, and a bill of exception duly reserved, the surety company filed exceptions of misjoinder of defendants and no cause of action. The laborers, materialmen, and subcontractors filed answers in which they asked for a personal judgment upon their claims against the state, the parish of Sabine, and C. S. Jackson & Co. and the surety company, in solido, and for recognition and enforcement of a lien and privilege and mortgage in their favor upon the fund in court and upon the work or highway. The exceptions of misjoinder and no cause of action having been overruled, the surety company and C. S. Jackson & Co. filed their answers, joining issue on the demands of the state and the parish of Sabine, and also upon the demands contained in the answers filed by the laborers, materialmen, and subcontractors. There was judgment in favor of the latter for the amount of their claims, against the parish of Sabine, the surety company, and C. S. Jackson & Co., in solido, and ordering the said claims paid out of the fund in court, and ordering also the costs of the suit, as well as the cost of recording the said claims, to be paid out of said fund, and ordering the remainder of said fund to be paid to the surety company, and also ordering as follows:

'It is further ordered, adjudged, and decreed that, upon the distribution of the said fund in accordance with this decree, all the liens and claims recorded against the owners and contractors of Many-Ft. Jessup highway and canceled and erased from the mortgage records of Sabine parish, and the state of Louisiana and Sabine parish be released from all further liability or indebtedness on account of said contract for the construction of said highway.'

From that judgment C. S. Jackson & Co. and the surety company have appealed.

We think the exceptions to the jurisdiction were properly overruled. If a concursus was admissible at all in the matter, the proper court to entertain it was that within whose territorial jurisdiction the highway upon which the liens were claimed was situated and most of the parties in interest resided. And the exception of misjoinder was also properly overruled, since, if there was to be a concursus, all parties in interest had to be cited.

A question of fact is raised in the case, whether the debts to the laborers, materialmen, and subcontractors were contracted by C. S. Jackson & Co. or by one O. T. Synnott. Synnott had charge of the work and contracted the said debts in the execution of it; but C. S. Jackson & Co. and the surety company contend that he was merely a subcontractor, for whose debts C. S. Jackson & Co. or the work cannot be made liable. Against this it is contended that Synnott was a partner of C. S. Jackson & Co., and represented the firm. He was unquestionably held out by C. S. Jackson & Co. to be a partner, or, at any rate, to have full authority to represent said firm in all matters pertaining to the work; and hence C. S. Jackson & Co. are estopped from contesting their liability for the debts in question, which are shown to have been contracted in furtherance of said work. The legal situation is therefore just as if these debts had been contracted by C. S. Jackson & Co., and the personal judgment against C. S. Jackson & Co. must in consequence be affirmed.

Jackson & Co. make no claim to the fund, and the contest in so far as this fund is concerned is exclusively between the surety company and the laborers, materialmen, and subcontractors.

The surety company contends that the state was without right to provoke this concursus, but should have simply paid the money to the contractor as stipulated in the contract. And in that connection the surety company argues that the laborers, materialmen, and subcontractors did not have any lien or mortgage upon the work, or any claim whatever against the state, and that therefore the state was utterly without interest to institute said concursus, and that a person without interest cannot bring suit.

The laborers, materialmen, and subcontractors, on the other hand contend that they did have a lien upon the work, and that therefore the state did have an interest, namely, the interest in having this lien...