Webb v. Blue Lightning Service Co., 41299
| Decision Date | 04 January 1960 |
| Docket Number | No. 41299,41299 |
| Citation | 237 Miss. 862,116 So.2d 753 |
| Parties | Heck WEBB, d.b.a. Mid-State Paving Company and Western Casualty & Surety Company, et al., v. BLUE LIGHTNING SERVICE COMPANY and W. W. Martin, et al. |
| Court | Mississippi Supreme Court |
Vardaman S. Dunn, Crisler, Crisler & Bowling, Jackson, McFarland & McFarland, Bay Springs, for appellants.
Beard, Pack & Ratcliff, Laurel, for appellees.
This suit primarily involves the extent of the liability, if any, of a contractor and his surety for materials furnished by a second materialman to a first materialman. The question arises out of the following circumstances:
On May 28, 1956, the Highway Commission of the State of Mississippi entered into a written contract with Heck Webb, doing business under the name of Mid-State Paving Company, under which contract Webb agreed and contracted to pave a segment of public road located in Clarke County, Mississippi, according to the plans and specifications attached to and made a part of the contract. The contract price was $90,591.83.
On the same day the Western Casualty and Surety Company executed on behalf of Webb a performance bond.
On August 9, 1957, the Highway Commission published due notice that the contract had been completed and final settlement had been made with Webb in accordance with Section 9016, Miss.Code 1942.
After entering into the construction contract Webb had an oral agreement with Richton Gravel & Concrete Company, a corporation, to purchase from Richton washed gravel delivered at the pits.
Blue Lightning Service Company, a corporation, sold to Richton Gravel & Concrete Company gasoline and diesel fuel to be used in mining the gravel.
On February 12, 1958, the Blue Lightning Service Company filed its declaration in this case, averring that under agreement with Richton diesel fuel and gasoline were furnished to enable Richton to excavate and wash the gravel that Richton had agreed to sell to Webb, and that Richton owed it a balance of $2,684.16 for such fuel and gasoline. The declaration also sought a judgment for said sum against Webb, the contractor, and his Surety. The liability of Webb and his Surety rested upon the assumption that Richton was a subcontractor of Webb.
Webb and his Surety denied liability for payment of such fuel and gasoline, contending that Richton was not a subcontractor.
Richton did not contest the suit. Default judgment was entered against him.
On September 18, 1958, W. W. Martin intervened in the suit averring he had furnished to Richton various articles, such as light bulbs, batteries, gasoline and oil to the amount of $76.10, which were used by Richton in connection with mining the gravel. Martin prayed for judgment against Webb and his Surety and Richton for said sum.
On November 4, 1958, D. O. King petitioned the Court for permission to intervene in this suit. The declaration averred that King had furnished to Richton '6,743 yards stabilizer' gravel, for which Richton, Webb and his Surety were liable, the balance owing to King being in the amount of $4,642.
Considerable testimony was taken at the trial of the case, mainly upon the question whether Richton used the diesel fuel and gasoline bought by Richton from Blue Lightning Service Company in mining the gravel which was used on the public road which Webb had contracted to pave, and whether the gravel bought by Richton from King was so used. Under our conception of the controlling principle in the case it is not necessary for us to decide that question.
At the end of the trial the learned circuit judge granted a peremptory instruction to the jury to return a verdict of $2,653.65 for the Blue Lightning Service Company against Webb and his Surety and Richton. He also instructed the jury to return a verdict against Webb and his Surety in favor of Martin for $25.13, this being the value of the articles he found Martin had furnished and which Richton had used in the production of gravel. By this finding he also denied to Martin recovery for the other articles composing the amount for which he sued. He further instructed the jury to find that Webb and his Surety were not liable to the Blue Lightning Service Company for one tire, $26.51, and money advanced to pay for a sign in the sum of $4. He instructed the jury to find that Webb and his Surety were not liable to the Blue Lightning Service Company for attorneys' fees.
From judgments entered in accordance with the foregoing instruction Webb and his Surety prosecuted a direct appeal to this Court, and King, Martin and the Blue Lightning Service Company prosecuted cross-appeals.
We are of the opinion that Webb and his Surety are not liable to claimants under the facts of this case. It will be noted that the claim of the Blue Lightning Service Company rests upon its furnishing diesel fuel and gasoline for the production by Richton of gravel. Webb had simply agreed to purchase gravel from Richton. Richton was under no obligation to do anything whatever towards the construction of the road. All it did was to sell to Webb gravel delivered at the pits. He had no responsibility to see that the contract with the State Highway Commission was fulfilled in any respect. There is nothing peculiarly applicable to paving the road in the type of diesel fuel and gasoline furnished by Blue Lightning. The same type of fuel could have been purchased by Richton from many other dealers in such fuels. Nor was the gravel furnished by King peculiarly applicable to the road. It was washed gravel suitable for use in other construction projects.
17 C.J.S. Contracts Sec. 11, p. 333, contains this statement: "Subcontractor' has a well defined meaning in building contracts, and as used in its technical sense it means one who takes from the principal contractor a specific part of the work, and does not include laborers or materialmen.'
Marsh v. Rothey, 117 W.Va. 94, 183 S.E. 914, 915, states Rothey had a contract to construct a dam for the city. He agreed to buy crushed stone from Bland at a unit price per cubic yard. Plaintiff worked for and furnished materials to Bland. The suit was on the construction bond. The Court held that Bland was a materialman and not a subcontractor and had no claim on the bond. The West Virginia Court defined a subcontractor and a materialman in this language:
Again it was said in Indiana Limestone Company v. Cuthbert, 126 Kan. 262, 267 P. 983, 984:
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