99 So. 2d 651 | Miss. | 1958
A part of the work was subject to the Thompson Plumbing Company, and which said subcontractor employed Ray Irby, doing business as Irby Plumbing Company, to do certain ditching with his own machine for the laying of water, gas and sewer pipes in the City of Holly Springs. The suit involves a balance alleged to be due the said Ray Irby for work in digging ditches with his own machinery at the instance of the Thompson Plumbing Company, at 25‡ for each lineal foot of ditches dug, the original price for such digging amounting to $1,165.50, and on which the sum of $300 had been paid.
The suit for the balance claimed by Ray Irby to be due bim for the said work was brought by the Housing Authority of the City of Holly Springs, Mississippi, for the use of Irby, and the suit was tried before the circuit judge without a jury by agreement of the parties, and with the result that a judgment was rendered in favor of the plaintiff Irby for the sum of $865.50 principal and $206.79 interest, aggregating $1,072.29 on August 29, 1956, and the appellants have prosecuted this appeal from the said judgment.
The suit was defended mainly on the ground that the Thompson Plumbing Company was the subcontractor for doing the work in question and that the said Thompson Plumbing Company had employed the appellee to do the $1,165.50 worth of ditching, and that
It is further contended by the appellants that the sum claimed to be due the appellee is for the use of his ditching machine in the performance of the work, and that the amount claimed should properly be termed as rental for the machine of the appellee, and that the same is not covered by the performance bond given by the appellants.
However, the performance and payment bond entered into by the principal contractor and the surety company in the sum of $399,500, by its very terms protects “all persons doing work or furnishing skill, tools, machinery, supplies, or materials under or for the purpose of the contract” in carrying out the work under the two housing projects, and the bond obligates the obligors therein to “promptly pay all just claims * * * for all work done, or skill, tools, machinery, supplies, labor and materials furnished * *
Moreover, the performance and payment bond further provides that the bond shall be “for the use of the Housing Authority of the City of Holly Springs, Mississippi and all persons doing work or furnishing skill, tools, machinery or materials under or for the purposes of the contract * * *” There is nothing in the pleadings, agreed statement of facts or other proof to support the contention that the appellee’s claim was for rental on machinery rather than for labor.
The performance and payment bond executed by the appellants is covered by the provisions of Section 9014, Code of 1942 Annotated, and under the decision of the case of Oliver Construction Company v. Dancy, 137 Miss. 474, 102 So. 568, the principal contractor is liable to make payments “to all persons supplying labor or material
This is not a suit to recover for material and equipment furnished in performance of a contract but is for labor done with a machine. Therefore the cases of McElrath, et al. v. Kimmons & Sons, 146 Miss. 775, 112 So. 164, and Watts v. Western Casualty & Surety Company, 210 Miss. 211, 49 So. 2d 255, do not control in the instant case.
We are unable to see the distinction between a laborer digging a ditch at so much per lineal foot with his own
The judgment appealed from must therefore be affirmed.
Affirmed.
