Warner v. Hallyburton

• Decision Date: 19 March 1924
• Docket Number: 258.
• Citation: Warner v. Hallyburton, 187 N.C. 414, 121 S.E. 756 (N.C. 1924)
• Parties: WARNER ET AL. v. HALLYBURTON ET AL. CAROLINA HARDWARE CO. v. HALLYBURTON ET AL.
• Court: North Carolina Supreme Court

121 S.E. 756

187 N.C. 414

WARNER ET AL. v. HALLYBURTON ET AL.

CAROLINA HARDWARE CO. v. HALLYBURTON ET AL.

No. 258.

Supreme Court of North Carolina

March 19, 1924

Appeal from Superior Court, Wake County; Grady, Judge.

Actions by Robert H. Warner and others, copartners doing business as the Campbell-Warner Company, against R. H. Hallyburton and another, trading as the Carolina Construction Company, and another, and by the Carolina Hardware Company against R. H Hallyburton and another, trading as the Carolina Construction Company, and others.Cases consolidated.Judgments for plaintiffs against defendant named, and defendantT. F. Boyd and plaintiffs appeal.Affirmed on plaintiffs' appeal reversed on defendant's appeal.

From the facts as stated, it appears: That in 1922 the Carolina Construction Company contracted with the board of education of Wake county to build, for the obligee county of Wake, a public schoolhouse at Apex, N. C., for the contract price of $58,083, payable in specified installments, and to provide at "their own expense all labor, material scaffolding," etc., "necessary for the proper performance," etc.And there were various other provisions in the contract looking for the protection of the board of education, one of the contracting parties.That later the Construction Company entered into a bond in the sum of $15,000, signed by R. H. Hallyburton, a member of the partnership, and T. F. Boyd, as surety, for the faithful performance of the contract.That the building was completed according to specifications and paid for as agreed upon, the last payment, $555, being on January 6, 1923, and on certificates of the architect as the contract required, and this and all other payments were made without any demand or notice of any existent claims for material or otherwise.That pending the construction of the schoolhouse, plaintiffs, supply men, furnished to the contractors building material to a large amount, a large portion of which was paid for, but leaving a balance due the plaintiffHardware Company of $490.63, as of November 4, 1922, and $750 due Campbell-Warner Company, as of June 18, 1922, which is still unpaid.

Upon these the facts chiefly pertinent to the inquiry, the court entered judgment that the board of education of Wake county had taken a sufficient bond for protection of materialmen as required by section 2445 of the Consolidated Statutes, and as to them the action be dismissed; that plaintiffs have judgment against defendant partnership and T. F. Boyd, surety, for $15,000, penalty of the bond to be discharged on payment of the amounts respectively due them, and interest.DefendantT. F. Boyd excepted and appealed.

Plaintiffs also excepted and appealed "to the extent required to preserve their rights against the board of education of Wake county."

Robert C. Strong, of Raleigh, for Carolina Hardware Co.

N. G. Fonville and S. Brown Shepherd, both of Raleigh, for Campbell-Warner Co.

Gibbons & Le Grand, of Hamlet, for T. F. Boyd.

J. M. Broughton, of Raleigh, for board of education of Wake county.

HOKE J.

Section 2445 of the Consolidated Statutes provides that every county city, town, or other municipal corporation which lets a contract for building, repairing, or altering any building or public road or street shall require the contractor for such work (when the contract price exceeds $500) to give a bond before beginning the work, and payable to said county, city, etc., conditioned for payment of all labor done, or material and supplies furnished for said work;...