United States Fidelity & Guaranty Co. v. Plumbing Wholesale Co

• Citation: 175 Miss. 675,166 So. 529
• Decision Date: 23 March 1936
• Docket Number: 32168
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. PLUMBING WHOLESALE CO
• Court: United States State Supreme Court of Mississippi

166 So. 529

175 Miss. 675

UNITED STATES FIDELITY & GUARANTY CO. v. PLUMBING WHOLESALE CO

No. 32168

Supreme Court of Mississippi

March 23, 1936

Division B

1 STATES.

Under statute authorizing materialmen and laborers to bring suit on bond of contractor with state within one year after final settlement or abandonment of contract and publication of notice thereof, publication of final settlement or abandonment of contract held essential prerequisite of maintenance of suit as well as publications of notice of pendency of suit (Code 1930, sections 2264, 5971, 5972, 5976).

2 STATES.

Under statute providing for one suit by laborers and materialmen on contractor's bond after publication of notice of final settlement or abandonment of contract, judgment in suit by materialmen held void and ineffective to bar subsequent materialman's suit, where petition stated that publication of settlement or abandonment had not been made as required by statute (Code 1930, sections 2264, 5971-5976).

3 JUDGMENT.

Judgment rendered on bill or declaration that states no cause of action is void.

4 STATES.

Equity court had jurisdiction of suit by materialman against surety on bond of contractor with state where three separate contracts had been executed with same contractor and with same surety on all bonds, and materials furnished by materialman went indiscriminately into all of such contracts, so that materialman was unable to ascertain how much went into each contract and sought discovery of facts with reference thereto (Code 1930, sections 2264, 5971-5976).

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county HON. V. J. STRICKER, Chancellor.

Suit by the Plumbing Wholesale Company against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed and remanded.

J. A. Covington, Jr., of Meridian, for appellant.

As these are contracts with the state for the erection of public buildings, it is apparent that any suit thereon is governed by sections 5971 to 5976, inclusive, of the 1930 Code.

This appellant contends that the suit of R. F. Pittman in the chancery court of Lauderdale county was instituted under the provisions of the sections named and was the original suit contemplated by the statute. If this view is correct then certainly the appellee has no right to maintain a suit in the chancery court of Hinds county for such a suit would be a second suit upon the identical contracts and bonds which is contrary to the provisions of section 5974.

U. S. F. & G. Co. v. Dedeaux, 152 So. 274.

It will be observed that in neither the first suit nor the one at bar is it contended that the contracts were ever completed or that final settlement was ever made. In both suits it is contended that the contracts were abandoned.

Section 5973, Code of 1930.

If the contractor quits or abandons the contract before its completion a suit may be instituted at a time thereafter, provided it is instituted before the period of one year provided for in the statute expires, in other words appellant contends that a suit may be filed at any time after the abandonment and before the expiration of one year from the date due publication is made.

Marquette Cement Mfg. Co. v. Fidelity & Deposit Co., 158 So. 924.

If the statute should be construed as contended by the appellee, that no furnisher may sue at all until the obligee sees fit to publish notice, then we are led to do a very harsh rule which delays and hinders the furnisher and works entirely to the advantage of the obligee, contractor and surety. This certainly was not the intention of the legislature and the statute surely will not bear such an interpretation.

It is apparent that the Legislature did not intend to put a premium upon the negligence, inattention or fraud of the obligee or to place the furnishers at the mercy and whim of the obligee.

The general demurrer raises the point that there is no equity on the face of the particular bill; that the cause of action is legal and not equitable; that the remedy is full, adequate, and complete at law and that an equity court has no jurisdiction.

Marquette Cement Mfg. Co. v. Fidelity & Deposit Co., 158 So. 924; Illinois Surety Co. v. United States, 240 U.S. 214, 36 S.Ct. 321, 60 L.Ed. 609.

It is respectfully submitted that the general demurrer should have been sustained.

The special demurrer raises the point that the bill of complaint should not have been on all of the bonds collectively but separate suits should have been filed on each.

The case of Marquette Cement Mfg. Co. v. Fidelity & Deposit Co., is almost identical in its facts with the case at bar.

It is apparent on the face of this proposition that, as said by the court in the Marquette Cement Mfg. Co. case "the cause of action on each of these bonds is separate from the others, a judgment rendered on one of them being no way affected by the judgments rendered on the others, and the persons interested in each of them may not be the same persons interested in all or any of the others; and we have to presume that such may ultimately be the case, for the statute permits all persons who supply labor and materials for the contracts, the performance of which is secured by a bond, to intervene and become parties to any action thereon.

Alexander & Satterfield, of Jackson, for appellee.

Interlocutory appeal is justified in this case.

Y. & M. V. R. R. Co. v. James, 108 Miss. 656, 67 So. 152.

The suit of R. F. Pittman v. United States Fidelity & Guaranty Company was prematurely brought and, therefore, such court had no jurisdiction to proceed, nor does such action bar a subsequent proper proceeding.

Section 5973, Code of 1930; Dixie Minerals Corp. v. Dixie Asphalt Paving Co., 159 So. 562; Marquette Cement Mfg. Co. v. Fidelity & Deposit Co., 158 So. 924.

If any hardship may be worked upon laborers and materialmen through this statute, it could be as easily done through a delay in the final settlement or determination of the abandonment as by failure to publish notice. It will be noticed that the statute does not state that there is a determination of the abandonment, by publication of notice, but it states that "the obligee shall have made said final settlement or determined said abandonment and published notice thereof." The determination is not made by the publication but by the proper action of the public body. In this case, the abandonment was determined on February 25, 1935, which complied with the first requirement, and notice thereof was published on March 7, 1935.

As stated in the brief for appellant, there is no contention that the section does not come into play with reference to the limitation of the right to bring the action as this was definitely decided in the Marquette Cement Mfg. Co. Case, supra, and the case of the Oliver Construction Co. v. Crawford, 142 Miss. 420, 107 So. 877.

The importance which the court attaches to such publication is illustrated by the case of United States Fidelity & Guaranty Co. v. Mobley, 143 Miss. 512, 108 So. 501.

The chief purpose of the statute, as stated by the Supreme Court, is to protect the contractor and, the obligee from numerous vexations and premature suits by laborers and materialmen.

If private individuals either by collusion and fraud or by negligence refused or failed to determine the abandonment and publish the notice, then certainly the laborers and materialmen would have the right to proceed in equity by suit for mandatory injunction and cause such notice to be published by the owner or by a commissioner appointed by the court acting in his stead.

However, such discussion is surplusage, for the Legislature has required by statute the publication of notice of abandonment, which is a part of the due process of law. Such notice is a condition precedent to the filing of the suit, and, without the same, the court has no jurisdiction to entertain the suit, nor to enter any orders whatsoever therein.

In this case all laborers and materialmen and the defendants dealt with the three contracts as one undertaking. Material was furnished the defendant contractor at a central office, and labor was used from such office interchangeably throughout the entire job. Therefore, all have an identity of interest with each other and also with the defendants.

The right to sue upon two or more bonds, although the sureties are different, has been recognized repeatedly by the Supreme Court of this state.

Fidelity & Deposit Co. v. Wilkinson County, 106 Miss. 654, 64 So. 457; Gay v. Edwards & Co., 30 Miss. 218; Griffith's Chancery Practice, sees. 201, 206; Jones v. Jones, 99 Miss. 600, 55 So. 361; Butler v. Spann, 27 Miss. 234; Garrett v. Railroad Co., Freem. Ch. 70; Wright v. Sheldon, S. & M. Ch. 399; Waller v. Shannon, 53 Miss. 500; Hardie v. Bulger, 66 Miss. 577; Roberts v. Burwell, 117 Miss. 451, 78 So. 357; Tchula Commercial Co. v. Jackson, 147 Miss. 296, 111 So. 874; Knight v. Upton, 159 Miss. 262, 130 So. 475; National Casualty Co. v. Hallam, 138 So. 572.

When the facts, not as to liability, but as to which of two sets of sureties are liable for the default, are unknown chancery has jurisdiction to compel discovery; but where the only uncertainty is as to the law in determining liability on known facts it has no jurisdiction.

Lauderdale Co. v. Alford, 65 Miss. 63, 3 So. 246; Griffith's Chancery Practice, secs. 173-4.

In the case at bar we have a situation which is even stronger than those dealt with in the above cases. In most of them separate suits could have been filed, and the reason for the overruling of demurrers setting up multifariousness was that one suit was preferable in order to prevent a multiplicity of suits. Here...