United States Fidelity & Guaranty Co. v. Tate County

• Decision Date: 12 March 1917
• Docket Number: 18868
• Citation: 74 So. 769,114 Miss. 1
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. TATE COUNTY
• Court: Mississippi Supreme Court

74 So. 769

114 Miss. 1

UNITED STATES FIDELITY & GUARANTY CO. v. TATE COUNTY

No. 18868

Supreme Court of Mississippi

March 12, 1917

Division A

APPEAL from the circuit court of Tate county, HON. E. D. DINKINS Judge.

Suit by Tate County against the United States Fidelity & Guaranty Company and another. From a judgment for plaintiff, defendant appeals.

One Clarke entered into a contract with the board of supervisors of Tate county for working the public roads of said county which contract provided that:

"This contract is to begin and be in force from and after the 1st day of February, 1912, until the 1st day of January, 1914 and during said term all of said roads shall be worked, constructed, and built and maintained according to specifications adopted by the board," etc.

The contract further provided that said Clarke was to receive the sum of forty-three dollars and fifty cents per annum per mile for all roads so worked, constructed, and maintained. The contractor was to receive his pay quarterly, except twenty-five per cent., which was to be retained until the end of each year, when settlement for the entire year was to be made for the work done during that year. Appellant was surety on the contractor's bond. After working the roads under said contract for a time. Clarke abandoned said contract and refused to carry it out. Thereafter the board notified his bondsmen, requesting them to perform the contract, which they refused to do, and the contract was then relet to one Crenshaw, who was the lowest bidder, at sixty-five dollars per mile, and Crenshaw carried out the contract. At the end of the first year the bondsmen were called upon to pay the county the excess which it had been compelled to pay Crenshaw over and above the amount which it had contracted to pay Clarke. The bondsmen declined to pay same, and suit was brought for the difference, and judgment recovered by the county against the bondsmen (appellant), from which no appeal was prosecuted, and appellant paid the judgment. At the end of the second year, the county having again been compelled to pay Crenshaw an amount over and above the amount contracted to be paid to Clarke, demand was made on appellant to make good the excess, which appellant declined to do, whereupon suit was filed against Clarke and his bondsmen, when appellant interposed a plea of res judicata, which was overruled by the court and a peremptory instruction given to find for the county in the sum sued for, and from a judgment thereon this appeal is prosecuted.

Judgment reversed and cause dismissed.

Holmes & Sledge and W. M. Hall, for appellant.

J. F. Deean and H. M. Thompson, for appellee.

OPINION

SMITH, C. J.

The rule announced in ...