State v. Miller
| Decision Date | 03 February 1930 |
| Docket Number | 29171 |
| Citation | 126 So. 422,169 La. 914 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. MILLER et al |
[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Original Opinion of January 6, 1930, Reported at 169 La. 914.
On Application for Rehearing.
John T Gibbons has applied for a rehearing, contending that the Southern Surety Company is liable in solido for the obligations of the contractor, under the contract, and that, according to section 6 of Act 224 of 1918, the surety company cannot urge any defense which the contractor could not urge successfully. Our answer is that the surety on the contractor's bond was not liable at all for purchases made by the contractor, except for material furnished for the construction of the road. In so far as the contractor might have been concerned in the defense, he could have urged the defense that the purchases made by him from John T. Gibbons were not of material to be usedin the construction of the road; and surely the surety company was properly allowed to urge that defense. The application of John T. Gibbons for a rehearing is therefore denied.
The Southern Surety Company also has applied for a rehearing, or in the alternative, for an amendment or explanation of the decree heretofore rendered, particularly with regard to the liability for costs of the appeal. The first complaint is that we erred in allowing the claim of the Interstate Trust & Banking Company, as subrogee, to the extent of $ 11,159.60, with interest at 5 per cent. per annum from the 27th of May, 1922. We do not find any error in the court's judgment in that respect. The second complaint is that the surety company should be allowed to share in the distribution of the fund deposited in court, to the extent which it cost the surety company to complete the work after the contractor defaulted on his contract. The reason why the surety company cannot share in the distribution of the fund deposited in court is that the fund is less than the amount due to the workmen and materialmen, or their subrogees, whose claims have been allowed; and the surety company is liable for the excess which will remain due them after the fund is distributed. The judgment in that respect is correct. The third complaint is that we should have declared in our decree that the parties whose claims we rejected or reduced, "as far as the appellant, Southern Surety Company, is concerned," could not, to that extent, share in the distribution of the fund deposited in court. The...
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