U.S. Fidelity & Guaranty Co. v. Andalusia Mfg. Co.

• Decision Date: 12 March 1931
• Docket Number: 4 Div. 509.
• Citation: 134 So. 18,222 Ala. 637
• Court: Alabama Supreme Court
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. ANDALUSIA MFG. CO. ET AL.

134 So. 18

222 Ala. 637

UNITED STATES FIDELITY & GUARANTY CO. v. ANDALUSIA MFG. CO. ET AL.

4 Div. 509.

Supreme Court of Alabama

March 12, 1931

Rehearing Denied as to Appellant, Granted as to Appellee, April 23 1931.

Appeal from Circuit Court, Covington County; Emmet S. Thigpen Judge.

Action on road contractor's bond by the Andalusia Manufacturing Company against R. S. Taylor and the United States Fidelity &amp Guaranty Company, with intervention by other claimants. From judgments for plaintiff and interveners, defendant last named appeals.

Affirmed in part, corrected and affirmed in part, and in part reversed and remanded.

Coleman, Coleman, Spain & Stewart, of Birmingham, for appellant.

A. R. Powell, of Andalusia, F. D. McArthur, of Birmingham, and Steiner, Crum & Weil, of Montgomery, for appellees.

ANDERSON C.J.

The legal questions involved in this appeal have been decided and settled by the opinion of this court in the companion case of United States Fidelity & Guaranty Company v. Benson Hardware Company, 132 So. 622, so nothing remains except to apply the law as there laid down to the facts relating to the respective claims here involved.

Roquemore Gravel Company, Intervener.

This claim seems to have been represented by two accounts, noted as Exhibit A and Exhibit D. Exhibit A is for $10,682.21 for sand and gravel supplied, accepted, and used by the contractor at an agreed price, and which was to be used upon the road project in question. Exhibit D, for $941.21, is for gravel which was finally rejected by the highway engineer, and as said claim was disallowed by the trial court it needs no further consideration.

As to Exhibit A, the proof shows that the material was sold and accepted for the road project covered by the bond, and while there is a contention that some part of it was diverted or used in another contract or project, appellant has not met the burden of showing the amount so used and the value of same.

The judgment of the circuit court is affirmed as to this claim.

Dudley Bar Company, Intervener.

The proof shows that the items composing this claim were sold to the contractor to be used in project 273, and were so used, but if any part was not so used the appellant has not shown just what part or how much went into other projects. Indeed, the only serious argument against this claim, apart from the legal questions adversely settled against the appellant in the companion case to which we referred in the outset, is that the works, such as culverts, etc., into which this material went, were not expressly mentioned in the contract. We may here quote the following provision of the contract, to wit: "The Contract shall include the Proposal, Plans, Specifications and Contract Bond, also any and all Supplemental Agreements required to complete the construction of the road in a substantial and acceptable manner."

The judgment of the circuit court as to this intervener is affirmed.

Andalusia Manufacturing Company, Intervener.

The witnesses Merrill and Walker both testified that the lumber was sold to Taylor, the contractor, to be used on project 273. Walker also identified some of the material as being used on said job. Grover Garvin, who worked for Taylor, testified that a good deal of this material was used on the state job or project 273. This evidence at least made out a prima facie case for this intervener, and made it incumbent upon the appellant to show that it was used on the city or other jobs, and what part was so used, and which it failed to do.

The judgment of the circuit court as to this claim is affirmed.

Tilley Lumber Company, Intervener.

It is doubtful if the appellant's brief is sufficient to establish error upon the conclusion of the trial court as to the facts, as no reference is made as to what evidence shows the material was used on other projects or for purposes other than the one for which it was sold. Said brief simply refers to the argument against the Young and Dudley claims, and which no doubt refers to the legal questions which have been adversely decided in the companion case heretofore adverted to in this opinion.

It is sufficient to suggest, however, that the evidence in support of this claim has been examined, and shows that the lumber was...