State v. Davis
| Decision Date | 17 February 1930 |
| Docket Number | No. 16823.,16823. |
| Parties | STATE to Use of POTTS v. DAVIS et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.
"Not to be officially published."
Action by the State, to the use of F. E. Potts, against A. A. Davis, trading under the name and style of the A. A. Davis Construction Company, and others. Judgment for defendants, and plaintiff appeals. Affirmed.
John C. Stearns, of Kansas City, for appellant.
Ryland, Boys, Stinson, Mag & Thomson, of Kansas City, for respondents.
This is a suit on a statutory bond, dated September 4th, 1925, and given in pursuance of section 1040, R. S. 1919, as amended (see Laws of 1925, p. 127). The bond was given by defendant, A. A. Davis, to the state of Missouri for the performance of a contract between said Davis and the state highway commission for the doing of certain road work. The defendant, Fidelity and Deposit Company of Maryland, was surety upon the bond.
At the close of plaintiff's testimony the court sustained defendant's demurrer to the evidence, resulting in plaintiff taking an involuntary nonsuit. Thereafter plaintiff's motion to set aside the nonsuit was overruled and plaintiff has appealed.
Davis subcontracted a part of the work consisting of certain grading to the defendant, Willey. Willey rented of plaintiff a tractor, elevator grader, blade, teams and wagons which the former used upon the work, agreeing to pay plaintiff for the use of the equipment $50.00 per day. Subsequently, Willey "threw up the job" and plaintiff rented the tractor to Davis for five days at $30.00 per day. After Willey had used the equipment sixteen days he gave plaintiff an order upon Davis for $800.00, and Davis paid $385.00 of this amount, leaving a balance due plaintiff of $415.00. Thereafter Willey used the equipment for eighteen days and plaintiff claimed $900.00 for this. The entire amount sued for is $1,465.00.
Under his contract with plaintiff Willey fed the mules and took care of the repairs on the machinery and furnished all labor. Neither plaintiff nor any of his employees performed any labor in connection with the use of the equipment in the road work.
The bond was conditioned that Davis "shall pay for material, lubricants, oil and gasoline used or consumed in the construction of such work, and for all labor performed in such work, whether by sub-contractor or otherwise."
There is no question but that the court did not err in holding that the tools, implements and teams furnished by plaintiff to Willey did not come within the bond....
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