United States Fidelity & Guar. Co. v. Henderson County

Decision Date12 June 1923
Docket Number(No. 986.)
Citation253 S.W. 835
PartiesUNITED STATES FIDELITY & GUARANTY CO. et al. v. HENDERSON COUNTY et al.
CourtTexas Court of Appeals

Appeal from District Court, Henderson County; L. D. Guinn, Judge.

Action by Henderson County and others against the United States Fidelity & Guaranty Company and others, in which interventions were filed. From judgment for interveners, defendants appeal. Affirmed in part, in part reversed and rendered, and in part reversed and remanded.

Seay, Seay, Malone & Lipscomb, of Dallas, and Miller & Miller, of Athens, for appellants.

E. A. Landman, of Athens, for appellees.

WALKER, J.

In 1919, Henderson county entered into a written contract with Williams, Burk & Co., for the improvement of one of its public roads. The following provisions of the contract are material to the facts of this appeal:

"This agreement made this 29th day of December, 1919, by and between Henderson county, Tex., represented by the commissioners' court, party of the first part, and Willams, Burk & Co., composed of J. P. Williams, T. J. Burk and W. W. Scarborough of Jacksonville, Tex., his their executor, administrators, heirs, successors or assigns, party of the second part; and subject to the approval of the Texas State Highway Commission:

"Whereas, the said county, known as the party of the first part, desires to enter into a contract with the above-mentioned firm for the improvement of the road bridge highway No. 19, Job No. 108 `A' in the said county, commencing at station 264 100 near six miles north of Athens, Tex., and extending thence to station 1003 1 20 or as far as the money available will construct in accordance with the provisions of the state statutes and of the notice to contractors, specifications, proposal, and plans marked ____ annexed hereto, and made part hereof, and

"Whereas, the party of the second part has been engaged in and now does such work and is fully equipped, competent and capable of performing the above desired and outlined work, and is ready and willing to perform such work in accordance with the provisions of the attached notice to contractors, specifications, proposal and plans, marked ____, now witnesseth:

"That for and in consideration of the prices and agreement mentioned in the proposal hereto attached and made part of this contract, the said contractor agrees to do at his own proper cost and expense, all the work necessary for the improvement of road bridge No. 19 in Henderson county, in accordance with the provisions of the attached notice to contractors, specifications, proposal and plans which are made part of this contract, and in full compliance with all of the terms of the specifications and requirements of the engineer."

The plans and specifications contained the following provisions material to this appeal:

"Contract. The agreement covering the performance of the work. It shall include the plans and specifications and shall be held to cover any or all work, labor, implements, machinery, equipment and materials that are required to complete the work indicated in a proper and satisfactory manner. Work shown on the plans and not mentioned in the specifications, or vice versa, shall be done the same as if shown by both, and in case of conflict the decision of the engineer shall be final and conclusive."

"Contractors' Bond. The contractor shall fine a guaranty of his faithful performance of said contract, a good and sufficient bond in compliance with article 5623a, Senate Bill No. 79, chapter 143 of the 34th legislature 1915, which requires that the contracts less than $1,000 a bond for full amount of contract be given, for those over $1,000 and not over $5,000, three-quarters of contract price, and those over $5,000, and not over $100,000, one-half contract price, those over $100,000 one-third contract price be given. Said bond to be furnished by a surety company authorized to do business in the state of Texas, or responsible persons acceptable to party of the first part. In the latter instance, it is necessary that those signing bond be certified as financial solvent to full amount of bond."

Williams, Burk & Co., as principal, and United States Fidelity & Guaranty Company, as surety, executed to Henderson county the following bond:

"Contractors' Bond. `Know all men by these presents: that we, Williams, Burk & Co., of Jacksonville, Cherokee county, and state of Texas, principal, and United States Fidelity & Guaranty Company of Baltimore, Md., as surety, are held and firmly bound unto the county of Henderson, state of Texas, in the penal sum of forty-three thousand two hundred twelve and 32/100 dollars ($43,212.32) lawful money to the United States, to be paid to said county or to its certain attorneys or assigns, for which sums of money, well and truly to be paid, we bind ourselves, our heirs, successors, executors, and administrators, jointly and severally, firmly by these presents.

"Sealed with our seals and dated this eighth day of January, A. D. 1920.

"The condition of this obligation is such that if the said bounden principal Williams, Burk & Co. shall in all things well and truly perform all the terms and conditions of the aforegoing contract, to be by them him performed, and within the time therein mentioned, and shall pay all lawful claims for labor performed in and about the construction of said road bridge, and shall have paid and discharged all liabilities for injuries which have been incurred in and about the said construction, under the operation of the statutes of the state, then this obligation is to be void; otherwise to be and remain in full force and virtue.

"Done in the presence of: Williams, Burk & Co., by W. W. Scarborough. [Seal.] United States Fidelity & Guaranty Company, by John Smallmon, Atty. in Fact. [Seal.]

"I certify that the above is a true and correct copy of the original. Chas. H. Kendall, Asst. State Hwy. Engr. [Seal.]"

As the contractors did not complete the work to the satisfaction of Henderson county, it took charge of the work and had it completed by other contractors and then filed suit against the original contractors and their surety on the foregoing bond. After the suit was filed, a large number of claimants intervened upon the allegation that the contractors and their sureties were liable to them upon the bond for labor and material furnished in the construction of the road. Pending trial, the contractors and the surety company settled the claim of Henderson county under a compromise agreement, by the terms of which they paid the county $8,000, which agreement was embodied in a judgment duly entered of record. W. R. Bishop, the regular district judge of Henderson county, was disqualified to try this case, and upon his certificate to that effect, the Governor designated Judge L. D. Guinn of the Second district, who proceeded to try the case on the 10th day of April, 1922, at a special term of the court called by Judge Bishop. This appeal is prosecuted by the contractors and their surety from a judgment entered against them in favor of the several interveners upon the answers of the jury to special issues. The transcript in this case contains about 1,000 pages, the statement of facts 260 pages, and the briefs about 500 pages. Appellants are urging 123 assignments of error, and appellees many cross-assignments. While under one style and number, this appeal, in effect, embodies about 30 different records, relating to the several interveners, many of them presenting questions peculiar to the several interventions. Manifestly, it is impracticable to take up appellants' many assignments and discuss them as they relate to each intervention. We believe it is sufficient to dispose of this appeal by discussing the general propositions involved and then relate them to the several interventions, as hereinafter indicated.

The court did not err in overruling appellants' plea of abatement, which they urged upon the proposition that under articles 6394f and 6394j, Texas Complete Statutes (Vernon's Sayles' Ann. Civ. St. 1914, arts. 6394f, 6394j), this suit could not be tried until twelve months after the completion of the work. We could dispose of this proposition upon the ground that appellants have made no statement showing when the work was completed. The record shows that service was complete upon defendants at the August term, 1921, and as the case was not tried until April 10, 1922, it may be the work had been completed more than twelve months when the case was tried. But, under the cited articles, the court did not err in refusing to abate the suit. These articles provide that claimants under the bond of a public contractor must institute their suit or intervene in the suit of the state or municipality within twelve months after the completion of the work. It is also provided that the suit cannot be tried until one week after the completion of three weeks' publication of notice of the pendency of such suit. It is conceded that the notice was published and that more than one week had elapsed after such publication before the case was tried. The requirement that the lis pendens notice be published constitutes a limitation upon the time within which interventions may be filed. While, in general terms, it is provided that such interventions may be filed within one year from the completion of the work, yet giving effect to all the provisions of the act, the statute requires that they be filed before the case is tried, and if the case is tried after due publication of lis pendens notice has been made, all interventions not filed are barred, though the one-year period of limitation has not matured. We have not been cited to any decision of this state construing the articles cited supra, but they are in identical terms, as to their conditions and obligations, with section 6923, United States Compiled Statutes. We have given to our statute...

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