United States Fidelity & Guaranty Co. v. Dedeaux

• Decision Date: 22 January 1934
• Docket Number: 30938
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. DEDEAUX et al
• Court: Mississippi Supreme Court

152 So. 274

168 Miss. 794

UNITED STATES FIDELITY & GUARANTY CO. v. DEDEAUX et al

No. 30938

Supreme Court of Mississippi

January 22, 1934

Division B

1 HIGHWAYS.

Materialmen's suit against principal road contractor and surety on subcontractor's bond running to principal contractor held governed by statutes regarding suits on bonds to pay for labor and materials furnished, and not by statute requiring notice of suit by publication (Code 1930, sections 2276-2281, 5976).

2 HIGHWAYS.

Materialmen by suing principal road contractor instead of subcontractor could not bring themselves within statutes regarding contracts for public work, where their petitions showed that materials were furnished to subcontractor, and that bond sued on was subcontractor's bond (Code 1930, sections 5971-5976).

3. ABATEMENT AND REVIVAL.

Materialmen's suit against principal road contractor and surety on subcontractor's bond held dismissible where former suit had been filed in another county on same bond against same surety by materialmen furnishing materials to subcontractor on same subcontract (Code 1930, sections 2264, 2279, 2281).

HON. T PRICE DALE, Chancellor.

APPEAL from chancery court of Smith county, HON. T. PRICE DALE, Chancellor.

Suit by Mrs. S. J. Dedeaux and others against the United States Fidelity & Guaranty Company. From an adverse judgment, defendant appeals. Reversed and dismissed.

Reversed and dismissed.

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

This suit is governed by chapter 128 of the Laws of 1918, Code of 1930, sections 2276, 2277, 2278, 2279, 2280 and 2281.

The contract and bond sued upon are private in their nature, not being required by statute.

Davis Company v. D'Lo Guaranty Bank, 138 So. 802.

Section 2279 of the 1930 Code provides that when suit is instituted on such a bond that only one action shall be brought and any person entitled to sue may, upon application, intervene and be made a party to said suit.

It will be noted that the Federal statute governing suits upon bonds on Federal contracts is almost identical with our contract bond statute. The Federal courts have held that all claims under a government contractor's bond are to be presented and adjudicated as a single action in which every claimant may intervene and be heard as a party.

Arnold v. U.S. for use of W. D. Guimarin & Co., 263 U.S. 427; Miller v. American Bonding Co., 257 U.S. 204; U. S. v. Wells, 257 U.S. 304, 66 L.Ed. 250; Illinois Surety Co. v. U.S. 212 F. 136, 129 C. C. A. 584; U. S. v. Illinois Surety Co., 228 F. 304.

It has been held by our Supreme Court that public contractors' bonds do not cover materials and equipment necessary for contractors to have to perform work; that repairs on public contractors' equipment are not secured by their bond; that a public contractor's bond does not secure the purchase price of machinery coming under the head of equipment.

McElrath & Rogers v. W. G. Kimmons & Sons, 112 So. 164; U. S. F. & G. Co. v. Yazoo County, 110 So. 780; Oliver Construction Company v. Crawford, 107 So. 877; Watkins v. U. S. F. & G. Co., 103 So. 224.

A bill must, by its own averments, state a case entitling the complainant to relief and the omission of a material averment makes the whole bill bad.

Griffith's Chancery Practice 166 A; Lumber Company v. Newcomb, 30 So. 608; Barrier v. Kelly, 33 So. 974; Parkhurst v. McGraw, 24 Miss. 134; Salmon v. Smith, 58 Miss. 399.

It is a fundamental that an appeal from a final decree opens for consideration all prior interlocutory decrees in any way connected with the merits of the final decree.

Kimball v. Alcorn, 45 Miss. 145; Jackson v. Lemler, 83 Miss. 37, 35 So. 306.

J. D. Martin and R. S. Tullos, both of Raleigh, for appellees.

This suit was instituted and is governed by section 5971 of the Mississippi Code of 1930, and the court will find from the reading of the record in this case that no notice was given as is required by section 5976, of Mississippi Code of 1930, as to any of the suits in this same matter being instituted or pending in Lauderdale county, and the record in this case shows that the work, etc., upon which this suit is based was done in Smith county, and the failure to give notice as required by the section above cited, we had a right to file and maintain this suit in Smith county, and that this suit was filed in Smith county, Mississippi, before the appellee had any notice of any kind, that a suit had been filed in Lauderdale county.

U. S. F. & G. Co. v. Mobley, 143 Miss. 512, 108 So. 501.

The motion to dismiss should be sustained and the case dismissed, because without the appellant complying with section 725 of the Mississippi Code of 1930, in giving this notice and seeing that the records taken in the lower court in this case as to the evidence heard in the lower court, prevents appellees from getting their case in full before this court.

OPINION

Griffith, J.

Clark & McCaa contracted with the state to construct or reconstruct a certain road in Smith county, and thereafter the said principal contractors let a subcontract for the clearing, grubbing, and sodding of said road project to Davis & McBride. The said subcontractors gave bond to the principal contractors for the faithful performance of the subcontract with appellant as surety on the bond. The subcontractors in their attempt to perform their subcontract became indebted to appellees for divers amounts alleged to be for materials furnished to them in the furtherance of the work.

The sum due appellees by the subcontractors not having been paid appellees filed suit in the chancery court of Smith county on April 1, 1932, against the principal contractors and against the surety of the subcontractors to enforce collection of their said debts against the bond given as aforesaid. The surety appeared at the May, 1932, term of the court and answered. In its answer it incorporated a plea that on February 19, 1932, a suit had been filed in the chancery court of Lauderdale county upon the same bond and against the same surety by a person who had furnished labor and materials to said subcontractors on the same subcontract, and that all other persons interested therein had been...