Texas Co. v. Maloney
| Decision Date | 14 May 1935 |
| Docket Number | 1885 |
| Citation | 44 P.2d 903,48 Wyo. 280 |
| Parties | TEXAS COMPANY v. MALONEY, ET AL |
| Court | Wyoming Supreme Court |
APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.
Action by the Texas Company against E. J. Maloney and the American Surety Company of New York. Judgment for plaintiff, and the last-named defendant appeals.
Affirmed.
For the appellant there was a brief and also an oral argument by Clarence A. Swainson, of Cheyenne.
The petition fails to state a cause of action; it fails to show the posting and publication of notice required by the statute. Section 95-202, R. S. 1931. The matters required to be done as a condition precedent to the establishment of a right to an action upon the bond must be strictly complied with if a right of action accrues. The statute created a new liability and gave a special remedy for it, and the limitations upon such liability as set forth in the statute become a part of the rights conferred, and compliance with them is essential to the assertion and benefit of the liability itself. Cement Company v. McCord, 233 U.S 157; U. S. v. Boomer, 183 F. 726; Eberhard v United States, 182 F. 513; Baker Company v. U.S. 204 F. 390; Surety Company v. Schmidt, 158 N.E. 5. No service of notice of claim was ever made by plaintiff upon the principal and the proof further shows that service on the Surety Company was made on May 8, 1933.
The last publication of notice was on March 9, 1933, and notice was posted on the work February 28, 1933. The statute was construed in Surety Company v. Holliday Company, 42 Wyo. 407, and in Lumber Company v. Fidelity & Deposit Company, 24 P.2d 690. The action cannot be maintained upon the bond herein, for the reason that no service of the notice of claim was ever made upon the principal, and that service of notice of claim was had upon the defendant Surety Company more than sixty days after the posting of the notice on the work. Sec. 112-101, R. S. 1931; Barrett v. Barrett, (Wyo.) 23 P.2d 857; Davis v. Convention, (Wyo.) 16 P.2d 48; International Harvester Company v. Lumber Company, 25 Wyo. 367; Brennan v. Refining Company, 29 Wyo. 120; Bench Canal Company v. Sullivan, 39 Wyo. 351; District v. Wagner, (Ill.) 100 N.E. 190. The judgment below should be reversed.
For the plaintiff and respondent there was a brief and oral argument by James A. Greenwood, of Cheyenne.
Specifications of error numbered 3 to 7 are not discussed in the brief of appellant, and are therefore waived. McClintock v. Ayers, 36 Wyo. 132. The errors relied upon for reversal are: the overruling of defendant's demurrer and its motion to dismiss, at the close of plaintiff's testimony. The rule is that in alleging performance, the code permits a general allegation that the party duly performed all the conditions on his part. Sec. 89-1037, R. S. 1931; Lusk Lumber Company v. Independent Producers, 35 Wyo. 381. Respondent alleged due service of the notice required by Section 95-204, R. S. 1931. A judgment cannot be reversed on immaterial error. Sowers v. King, 32 Wyo. 167. The second assignment of error is grounded upon the overruling of appellant's motion to dismiss. Appellant does more than rely in the motion to dismiss or in his brief on the second defense of the answer denying service of written notice, as to the nature and amount of plaintiff's claim. This was necessary to overcome the admission. Cooke v. Myers, 283 P. 1114. Appellant does not deny due service of the written notice required by Section 95-204, W. R. S. 1931, within sixty days after March 9, 1933, but on the contrary it is admitted in appellant's answer. This dispensed with the necessity of proof. Collins v. Gray, 97 P. 142; Thompson on Trials, (2d Ed.) Section 197; Finley v. Pew, 28 Wyo. 342; Watts v. Lawrence, 26 Wyo. 367; 1 R. C. L. 496; 1 C. J. 1363. The notice required under the provisions of Section 95-301, R. S., has been designated, "Notice of Completion of Work." National Surety Company v. Holliday Company, 42 Wyo. 407. The word "posted" as used in Section 95-204, R. S. 1931, has been construed in the following cases, as we contend it should be construed in the case at bar: City of Pittsburgh v. Ry. Co., 103 A. 372; Voss v. Terrell, 34 S.W. 170; Stanford v. State, 268 S.W. 161; U. S. v. Miller, et al., 223 U.S. 599; 49 C. J. 1120. The notice required under Section 95-204, W. R. S. 1931, has been designated "The Notice of Claim." Surety Company v. Holliday Co., supra. The ruling last referred to is a complete answer to the argument of counsel for appellant that notice served within sixty days from the date of the last publication is not a compliance with the statute. Burton v. Coal Company, 18 Wyo. 362; International Harvester Company v. Jackson Lumber Company, 25 Wyo. 367. The intent of the Legislature must be determined from the language of the statute. In re Metcalf Estate, 41 Wyo. 36. Courts will not attribute to the Legislature an intention to state an absurdity. State v. Company, 38 Wyo. 47; Houghton Brothers v. Yocum, 40 Wyo. 57.
This case comes here by direct appeal to review a judgment of the District Court of Laramie County, the action having been brought in that court by The Texas Company, a Delaware corporation, as plaintiff, against E. J. Maloney and American Surety Company of New York, a corporation, as defendants. Maloney was never served with summons and never appeared; and the cause proceeded to trial and judgment without him. The parties will hereinafter be referred to as "plaintiff" and "defendant."
There appears to be but one question for argument and for disposition in the cause, and the facts necessary to be recited in order to present it are substantially these:
Under a contract between E. J. Maloney and the State Highway Department the former agreed to do and perform all work and furnish all labor and materials in surfacing 33.669 miles of the Riverton-Diversion Dam Road, Federal Aid Project No. E-159-B, E, F, F. L. H. P. 2-A, B, in Fremont County, Wyoming, for a stipulated sum of money. The defendant became his surety on a bond given by him, as required by law, to insure the proper performance of the contract and the protection of those furnishing him his materials. Maloney commenced the work October 3, 1932, and finished it on February 9, 1933.
During the progress of this work the plaintiff supplied Maloney with certain material "used for, in and about the execution and completion" of the work contracted to be performed by him, for which payment was not made, and on which was due at the commencement of the action aforesaid the sum of $ 6,777.31, with interest.
Upon conclusion of the work under the contract the Highway Department caused to be given due notice of its completion and that final payment would be made therefor, said notice being inserted in a newspaper published at Riverton, Wyoming, the first publication thereof appearing on February 23, 1933, and the last March 9, 1933. This notice was also posted at three conspicuous places on the work aforesaid on February 28, 1933, and was in the usual form required by law.
The account mentioned above not having been paid, the plaintiff instituted action to recover the amount due from Maloney and his co-defendant. The eighth paragraph of plaintiff's petition, relative to the notice of final payment published and posted by the State Highway Department as aforesaid, alleges:
"That within sixty days from March 9th, A. D. 1933, and after the last publication and after the posting of said notice by said Wyoming State Highway Commission of the time of completion of said work and the time when final settlement would be made with said defendant E. J. Maloney, the plaintiff did duly serve upon the defendant E. J. Maloney, as principal, and upon the defendant American Surety Company of New York, as surety in said contractor's bond, a written notice specifying the nature, amount and date of plaintiff's claim."
To this the defendant responded in the first defense of its answer:
"This answering defendant admits the allegations contained in paragraph 8 of plaintiff's petition, and alleges that plaintiff served a written notice specifying the nature, amount and date of plaintiff's claim upon defendant American Surety Company of New York, as surety in said contractor's bond mentioned in plaintiff's petition herein, more than sixty days after the posting of the notice for final settlement mentioned in plaintiff's petition."
In the first paragraph of the second defense of said answer the dates of publication and posting of the notice aforesaid, as recited above, are set forth, in the second paragraph thereof the statute, W. R. S. 1931, Sec. 95-204, is pleaded verbatim, and the third paragraph charges:
"That plaintiff did not comply with the provision of the statute above quoted; that it did not serve upon the principal and his surety a written notice specifying the nature and amount of its claim and the date thereof within sixty days after the publication and posting of the notice of final settlement hereinbefore mentioned."
In view of these statements and admissions contained in the pleadings of the parties the sole contention presented for the defendant is that the statute requires service of the written notice of claim "upon the principal and his sureties" not only within sixty days after the publication of the notice of final estimate payment, but also within sixty days after the posting of that notice; and that while such service was made within the sixty days following the completion of publication of said notice, it was not accomplished within that period following the posting, and hence the action may not be...
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