United States Fidelity & Guaranty Co. v. Yazoo County, 25887

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtCOOK, J.
Citation110 So. 780,145 Miss. 378
PartiesUNITED STATES FIDELITY & GUARANTY CO. v. YAZOO COUNTY, FOR USE OF RINGS et al. [*]
Docket Number25887
Decision Date13 December 1926

110 So. 780

145 Miss. 378

UNITED STATES FIDELITY & GUARANTY CO.
v.
YAZOO COUNTY, FOR USE OF RINGS et al.
[*]

No. 25887

Supreme Court of Mississippi

December 13, 1926


Division A

Suggestion of Error Overruled Jan. 10, 1927.

APPEAL from circuit court of Yazoo county, HON. W. H. POTTER, Judge.

Consolidated action by Yazoo county, for Use of Henry Rings and others, against the United States Fidelity & Guaranty Company. From an adverse judgment, defendant appeals. Reversed and remanded.

Judgment reserved, and cause remanded.

[145 Miss. 379] Wm. M. Hall and Barbour & Henry, for appellant.

Chapter 217, Laws of 1918, obliges the surety to "promptly make payments to all persons supplying labor or materials" for the work, and then gives the remedy to any one who has furnished labor or materials "used therein." The condition of the bond given in response to this statute is to "pay all persons furnishing said principal with material and labor in the course of the performance of said work."

It is our contention that articles such as shown here, forming a part of an ordinary equipment, even though worn out in the course of the work, are not covered by the word materials. None of the articles are, in their nature such as necessarily would be consumed, either actually or theoretically, so as to be regarded as "used in" the work or "furnished" in the "performance of the work." The test is not that the articles were worn out or consumed. To so hold would mean that the surety would be required to "set up" the contractor. Yet this is the holding of the lower court.

The decisions of this court and others to which we have access show the test to be whether the articles sold the contractor in the "performance of the work" were necessarily consumable in that work, such as coal to generate the power, dynamite to blast in excavations, gasoline to propel the machinery, feed stuff to keep the teams going. It does not include machinery, or articles which happened to be worn out, or partly or entirely consumed. There is no other way to give the word material used in the statute and the bond its true and ordinary meaning; [145 Miss. 380] its "clear" meaning, as this court said in Oliver Const. Co. v. Crawford, 107 So. 877. See Standard Boiler Works v. Nat'l Surety Co. (Ore.), 127 P. 573, holding that a bond similar to the one here does not cover any part of the contractor's working equipment; U. S. Rubber Co. v. Am. Bonding Co. (Wash.), 149 P. 706, holding that the surety was not liable for hose, belts, tubing, packing, gloves, boots and overcoats.

The authorities generally hold bonds, such as here involved, are intended to protect those who furnish materials which either enter into and become a permanent part of the improvement or are naturally consumed in the course of its construction. They hold that the bond does not cover tools, machinery, or appliances which, though employed in the work, even though worn out, are of such character that if not consumed can be used on other work. Empire Co. v. Des Moines (Io.), 131 N.W. 877, 132 N.W. 837; Kansas City v. Youmans (Mo.), 112 S.W. 225; Thomas v. Commonwealth (Mass.), 102 N.E. 428; May v. Thomas Co. (Ala.), 14 So. 768; Construction Co. v. Haliburton (Mo.), 258 S.W. 409; Hamlin Motor Co. v. Miller, 266 S.W. 99; Fay v. Bankers Surety Co., Ann. Cas. 1915C 683; Nye-Snyder Co. v. Bridges (Neb.), 151 N.W. 942; U. S. v. Morgan, 111 F. 474; Beals v. Fidelity & Dep. Co., 78 N.Y.S. 584; Lutrell v. Ry. Co., (Tenn.) 105 S.W. 565; Allen v. Elwert (Ore.), 44 P. 832; Evans v. Lower, (N. J.), 58 A. 294; Gilbert Hunt Co. v. Parry (Cal.), 110 P. 541; City of Alpina v. F. G. & S. Co. (Mich.), 123 N.W. 1126; Johnson v. Starett (Minn.), 149 N.W. 6; Hall v. Cowan (Wash.), 98 P. 670; McOrliffe v. Joogenson (Wis.), 62 N.W. 706; Heltzel v. Fidelity, & Dep. Co., (Ark.), 271 S.W. 325.

The following authorities hold expressly that automobile tires and tubes are not covered by the bonds similar in meaning to the one involved here, and are directly in point against the allowance of a large part if not all of the claim of 555 Tire and Service Company for six hundred eighty-one dollars. See, also, Southern Construction Co. v. Haliburton, [145 Miss. 381] 258 S.W. 409; Hamlin Motor Co. v. Miller, 266 S.W. 99.

The decisions of this court, so far as any opinions rendered show, in no way reason against our contention here. This court in the cases of Nat'l Surety Co. v. Hall-Miller Co., 104 Miss. 626; U. S. F. & G. Co. v. Marathon Lbr. Co., 119 Miss. 802; and Oliver Construction Co. v. Dancy, 102 So 568, hold only that the bond is liable for labor and material furnished subcontractors, and in no way goes to the question of what constitutes material, as distinguished from working equipment.

The case of Watkins v. U. S. F. & G. Co., 103 So. 224, holds a bond identical with the one involved in this case does not cover groceries and merchandise furnished a commissary of the contractor, which is operated in aid of his work and for profit. This court distinctly declined to follow the United States supreme court in the case of Brogan v. Nat'l Surety Co., 246 U.S. 257, holding the bond liable for groceries, etc., furnished a boarding house of a contractor in the wilds of Wisconsin.

In Standard Oil Co. v. Nat'l Surety Co., 107 So. 559, 143 Miss. 841, it was held that gasoline used in operating the machinery was covered by the bond. That holding in no way conflicts with out contention. Gasoline is necessarily and essentially a part of the material which was used and consumed in the work. It is like oil or dynamite.

In Oliver Construction Co. v. Crawford, 107 So. 877, 142 Miss. 490, this court held that while the statute was to be given a liberal construction, it will not be extended beyond the clear meaning of the terms used. The last case decided by this court on the question is Union Indemnity Co. v. Wineman, 108 So. 796, in which it was held that a contract provided that certain part of the profits were to be paid for the use of a machine used on the work was not covered by the statute.

We contend, therefore, that the articles involved here, constitute a part of the contractor's ordinarily standard [145 Miss. 382] working equipment, adaptable to any work, and not by their nature consumed.

H. B. Greaves, for appellees.

Chapter 217, Acts of 1918, which is section 2447A et seq. of Hemingway's Supplemental Code, is practically a rescript of the federal statute on this same question, only a little more comprehensive. The federal statute will be found in 8 Fed. Statutes Ann. (2 Ed.), page 374.

There is no contention in the evidence, or anywhere else, about the fact that there articles were sold to the contractor for the purpose of being used in and about the construction of this highway under the contract, and that they were absolutely...

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11 practice notes
  • U.S. Fidelity & Guaranty Co. v. Benson Hardware Co., 4 Div. 510.
    • United States
    • Supreme Court of Alabama
    • January 22, 1931
    ...L. R. A. 1917A, 336; Franzen v. So. Surety Co., 35 Wyo. 15, 246 P. 30, 46 A. L. R. 496; United States Fid. & Guar. Co. v. Yazoo County, 145 Miss. 378, 110 So. 780; McElrath v. Kimmons & Sons, 146 Miss. 775, 112 So. 164, 680. And it does not include major repairs on its permanent equipment, ......
  • Shoshoni Lumber Co. v. Fidelity & Deposit Co. of Maryland, 1801
    • United States
    • United States State Supreme Court of Wyoming
    • August 29, 1933
    ...not liable for articles not consumed in the work under contract. Franzen v. Surety Company, supra. U. S. F. & G. Co. v. Yazoo Co. (Miss.) 110 So. 780; National Surety Co. v. Grocery Co. (Ariz.) 259 P. 404; Pickering Lumber Co. v. Fuller (Okla.) 244 P. 760; U. S. F. & G. Co. v. Benson Co. (A......
  • Hartford Accident & Indemnity Co. v. Natchez Inv. Co, 27293
    • United States
    • United States State Supreme Court of Mississippi
    • December 3, 1928
    ...Bank v. Yazoo County, 109 So. 1, 144 Miss. 579; Commercial Bank of Magee v. Evans. 112 So. 482; Yazoo County v. U. S. F. & G. Co., 110 So. 780; United States v. American Surety Co., 200 U.S. 200, 50, L.Ed. 441; Mankin v. United States, 215 U.S. 536, 54 L.Ed. 317; Illinois Surety Co. v. John......
  • Arkansas Fuel Oil Co. v. Trinidad Asphalt Mfg. Co, 34215
    • United States
    • United States State Supreme Court of Mississippi
    • October 7, 1940
    ...Co., 104 Miss. 626, 61 So. 700; Standard Oil Co. v. Nat. Surety Co., 143 Miss. 841, 107 So. 559; U.S. Fidelity Co. v. Yazoo County, 145 Miss. 378, 110 So. 781; Day v. Royce Kershaw, Inc., 185 Miss. 207, 187 So. 222; U.S. F. & G. Co. v. Plumbing Wholesale Co., 175 Miss. 675, 166 So. 529. Und......
  • Request a trial to view additional results
11 cases
  • U.S. Fidelity & Guaranty Co. v. Benson Hardware Co., 4 Div. 510.
    • United States
    • Supreme Court of Alabama
    • January 22, 1931
    ...L. R. A. 1917A, 336; Franzen v. So. Surety Co., 35 Wyo. 15, 246 P. 30, 46 A. L. R. 496; United States Fid. & Guar. Co. v. Yazoo County, 145 Miss. 378, 110 So. 780; McElrath v. Kimmons & Sons, 146 Miss. 775, 112 So. 164, 680. And it does not include major repairs on its permanent equipment, ......
  • Shoshoni Lumber Co. v. Fidelity & Deposit Co. of Maryland, 1801
    • United States
    • United States State Supreme Court of Wyoming
    • August 29, 1933
    ...not liable for articles not consumed in the work under contract. Franzen v. Surety Company, supra. U. S. F. & G. Co. v. Yazoo Co. (Miss.) 110 So. 780; National Surety Co. v. Grocery Co. (Ariz.) 259 P. 404; Pickering Lumber Co. v. Fuller (Okla.) 244 P. 760; U. S. F. & G. Co. v. Benson Co. (A......
  • Hartford Accident & Indemnity Co. v. Natchez Inv. Co, 27293
    • United States
    • United States State Supreme Court of Mississippi
    • December 3, 1928
    ...Bank v. Yazoo County, 109 So. 1, 144 Miss. 579; Commercial Bank of Magee v. Evans. 112 So. 482; Yazoo County v. U. S. F. & G. Co., 110 So. 780; United States v. American Surety Co., 200 U.S. 200, 50, L.Ed. 441; Mankin v. United States, 215 U.S. 536, 54 L.Ed. 317; Illinois Surety Co. v. John......
  • Arkansas Fuel Oil Co. v. Trinidad Asphalt Mfg. Co, 34215
    • United States
    • United States State Supreme Court of Mississippi
    • October 7, 1940
    ...Co., 104 Miss. 626, 61 So. 700; Standard Oil Co. v. Nat. Surety Co., 143 Miss. 841, 107 So. 559; U.S. Fidelity Co. v. Yazoo County, 145 Miss. 378, 110 So. 781; Day v. Royce Kershaw, Inc., 185 Miss. 207, 187 So. 222; U.S. F. & G. Co. v. Plumbing Wholesale Co., 175 Miss. 675, 166 So. 529. Und......
  • Request a trial to view additional results

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