*1 198 provision

protection A- laws of the of the Fourteenth under Constitution; and, mendment of the Federal duty out, I have it is the of the rule hereinbefore set adopt is to that construction of which the statute court susceptible with the Constitution. that is accord may say I that the enactment of

In this conclusion, part desire on evidences an honest and sincere statute Legislature perplex- deal with one of the most of the ing problems criminal law—that of criminal in- suggest I But, with that the statute’s deference, sane. accomplished purpose in a more can be humane, at and, appear a more effective as will time, manner, the same reports of the various from an examination of the Amer- Criminology, par- Law ican Institute of Criminal ticularly report published in 10 volume of the Jour- page respectfully Society I which at 184, nal of com- Legislature. to the consideration mend Indemnity Co., Inv. Natchez Co. v. Hartford Accident et al. Inc., 1931.) 23, (Division B. Feb.

[132 28877.] No. So. 535. *3 Lipscomb, Arthur Jones, Jackson, Wells Wells, Stevens, Wallace Powell, Ga., G. Atlanta, appellant. Hartford, Conn., for

203 ap- Lipscomb, Jones., for Wells, Wells & of Jackson, pellant. Engle Lyell, Laub,

G. Garland of Jackson, appellees. Natchez, *6 Kennedy

Engle Geisen- & Brandon, & Laub, Brandon berger appellees. E. H. Natchez, all of Ratcliff,

208 Natchez, H. all Brandon Brandon E. Ratcliff, appellees. *10 Meyer, Byrnes Martin, W. O'. Martin & all Bradley, Birming- All Baldwin, White, all of Natchez, appellees. Green, and Green & ham, Ala., of Jackson,

213 Argued orally Barrett by Arthur Powell L. G. and by appellant, Laub, A. G-eisen- Jones, for S. C. W. and berger, appellees. Green, and Garner for Gerard Brandon

Ethridge, opinion of court. P. delivered the the J., appeal the decision cause, This the second of this is reported appeal being 119 in 155 31, in Miss. the first appeal had of the case as it So. on which a statement 366, chap- developed constitutionality made. of then was The upheld, be- ter and the contract 1918, Laws of was 128, Indemnity Company and tween the Accident & Hartford Company, was construed the Inc., Natchez Investment with the and bond be a in accordance the held to bond chapter provisions 1918. of Laws of 3, 128, section below the various On a remand of cause the court the material for the build- materialmen who had furnished ing, money Natchez and others had advanced to the who Company, upon a note or -to contractor Investment given by the propounded against company, the that claims Company, appellant, Indemnity & Hartford Accident praying judgment setting for the and forth their claims against Indemni- & thereof the Hartford Accident amount upon ty Company for contractors, and also interest and attorneys’ pro- in the claims and for fees incurred said pounding litigating A was their and claims. cross-bill Company Indemnity against filed and Hartford Accident having con- the suit filed as a the been contractors, by Company, proceeding the Natchez Investment cursus persons persons,,and the all such for benefit of such Inc., being made defendants to that bill.

Among provisions the of the contract the con- between Company, for and the Natchez tractors Investment Inc., building provision stating the was a the hotel, the payments contract, account of the owners should make on day provided on the 1st 15th as or about therein, price, the month, value, based on each contract incorporated in of labor materials work and of up suitably materials at to the 1st stored the site thereof day 15th the archi- of each as estimated month, aggregate previous payments. It less was tects, provided also in the contract that the contractor should pay all furnish and labor used materials building. construction of hearing agreed below On the court statements of facts were entered into between the Hartford Ac *14 Indemnity Company & material- cident and the several proceed propounded men whose were in claims the said ing. agreements substantially practically These are and agree day in 18th of alike, and, effect, October, that on the Company, in Inc., the Natchez Investment entered 1926, V. New Orleans, to contract with and R. T. Burkes J. of according of a Louisiana, for the construction hotel project plans specifications 6401 and known as No. of Dreyfous and Inc., that the Burkes Weiss, Seiferth, upon hotel. That entered the construction of the the by actually materials claimed the several claimants were Burkes, contractors, furnished to the the and that the prices that were amount of them was and the correct, and in due, fair and balance shown the reasonable, the by unpaid R. T. and was J. and claim, Burkes, V. they- building. agreements The re went the hotel into attorney’s question as to an fee was the whether served payable whether in claimants, to the also due and payable; agreed also that demand was due terest Company upon made the Natchez Investment had been money. payment' of of the said sums for the among appellant other contained, bond of the The following things, the clauses: ‘ ‘ obligee times and in the manner shall, the The at 1. fully comply terms specified with all the contract, in the obligee performance in default the if the thereof, required agreed thing any in bond, or this matter or of surety thereupon relieved the shall contract, in the or liability hereunder. all of any If knowl-

“3. at time there come to the notice or any edge obligee labor the claim for of information that performed principal or in or for materials furnished the unpaid, upon specified the contract remains work the any ma- work or or that lien or notice of lien for such obligee has shall withhold served, terials been filed or the from, ány principal payment moneys or to be- the due principal until the contract the come due to the under discharge payment lien or notice of such claim or of such notify surety, giving statement and will the a lien, so particular claim amount of each such facts and lien or notice of lien. changes by principal any or

“4. If or alterations the plans specifications obligee or shall be made obligee im- shall contract, the work described in the description mediately notify surety giving a thereof, by stating money such amount of involved changes however, that should Provided, or alterations. aggregate changes in the or alterations the cost of such per penal equal cent of the sum amount to a sum to ten changes shall no further or alterations bond, this be- obligee principal or until the consent of made surety be obtained thereto. shall first *15 provisions contained “8. None of the conditions or by the be deemed waived or altered in this bond shall surety waiver or written consent to such unless the duly by authorized alteration be executed its officers obligee duly thereto; affixed nor shall the and its seal be' part any assignment an of the contract or to consent surety duly express the without the consent of thereof aforesaid; nor shall this bond executed and attested as assignable except any rights with be the or thereunder surety duly executed and attested afore- the as consent of ’’ said. paragraph provided in 7 of the bond that It was also surety be liable- unless the contract not was shall the obligation paragraph paid the under cash; and, 11, in surety strictly the be as one of sure- of should construed any per- tyship only, of and not be for the benefit should obligee. named other than the son T. the Burkes, The Y. and B. contract between J. principal Com- and Natchez Investment in the the bond, price pany, was the of three hundred sixteen Inc., twenty-two eight dollars, hundred exclusive thousand provided payment in to and was be made that extras, Company, Inc., Natchez Investment current funds. The building, to the a bond with which erect floated issue by supplemented proceeds to the thereof had but company. bond netted individual funds of the The issue eighty After the thousand about hundred dollars. two to the contractors became entitled started, work and being paid in or in cash their first instead of estimate, aggre- given were funds,

217 Company accept for notes of the Natchez Investment tlie understanding of with an the amount their claims, against prop- the hotel their lien would not be released Natchez; Com-, erty by taking notes of Investment arrangement - pany, the thereof. This was not. oivner parties furnishing any material, consummated with except Company, was the Williamson-Greer whose .claim eight for twelve thousand hundred fifteen dollars and ten year note,was cents. after and This due one date was July per dated 1927, and bore interest at six cent 1,. per attorneys’ provided and for and costs annum, fees collecting incurred in the same, and recited that was it by payee a lien secured allowed law to the as to the furnishing supplies material, of and labor, in the con- Mississippi. struction of the Eola Hotel of Natchez, This payable note was made direct (cid:127)& to Williamson-Greer Company by Company, the Natchez Investment Inc., and gave J. V. and B. T. Burkes credit to the Natchez In- Company, vestment for the Inc., amount this note on price. given the contract The notes J. Y. T. and E. Burkes were dated November 1926. One for 10', was twenty-eight eight twenty-three thousand hundred dol- February ninety days lars, due 8, or 1927, after date, eight per maturity bore interest at the rate of cent from paid, provided per until ten if cent additional for placed attorney with an for collection. This note con- reserving upon tained no recital of the of the lien property payment, negotiable hotel for its awas instrument. The other two notes were for thousand five ninety dollars- each, dated November 10, 1926, and due days eight after date, and bore interest at the rate of per protest nonpayment, cent, waived and notice of provided might also that the note without extended affecting liability any parties notice and without and if thereto, should fail in makers business or be- bankrupt, against any come or have filed or them, proceedings involuntary bankruptcy them, or *17 appointment debts and all other of a this note receiver, contingent, obligations should direct or and of the maker, payable; immediately the and that a.t and become due provided, maturity due, as note, of the or when otherwise money, or any securities or other bonds, and all stocks, deposit any or property with nature whatsoever on of possession by, as collateral of, bank, in the said held or makers, of the account to the credit or for or otherwise, any parties of should them, or hereto, or other indorsers, payment applied of this the forthwith-to be and stand by any said said bank other indebtedness due or note, parties paid any when not and if this note be them; or attorney, placed an be in the hands of it should due, ’ paid. attorneys per These a cent fee should ten upon the form of a blank been made seem to have *18 to intervene in the as defendant and cross- court cause adjudication complainant. reserved for future It also Company, Bank & which the claim of New Trust Orleans brought proceeding in had a the circuit court to establish Hotel, lien the Eola and which cause a mechanics’ on .chancery court. had been transferred to the opinion provisions con- the that the are of We con- the construction of the hotel and the bond tract for chapter of 128, 1918, 3 of Laws a under section bond stitute for the of the material- and that the bond inures benefit the material that went into the hotel, men who furnished operation of law had the effect of writ- and that the ing this payment provision for the of of into bond claims the furnishing persons labor or material under the said con- written, actually though and therein, as it had been tract, provisions of the had the effect that none of the bond writing- provisions contract these and could of out of the competent, it words, have that In other is not not effect. given, provided by the to dis- act, where the bond is as contrary stipulations pense stipulations. All with these disregarded statutory provisions far must be so the to furnishing persons labor material or are concerned. as opinion the that bond not are further of the did We by protect given Inc., the Natchez Investment, the note Company. Between the Natchez to the Williamson- Greer appellant, Company,. and the the Hart- Inc., Investment Indemnity Company, provisions that ford Accident the provided payments contract, in the made, should as the statute funds, made, cash or current where prevent the When not their insertion in contract. did Company, gave notes the Natchez Investment these Inc., paying the cash, and contracted to reserve instead of the of holders the lien the benefit the of on hotel for against surety company right the it waived its as ¿otes, By flowing*from as to claims the notes. that contract the Invest- R. T. Natchez between J. Y. and Burkes the assignees Company, of ment the Inc., Burkes, and the negotiable against had a instrument of value the Burkes, Company, right a to the Natchez Investment Inc., building the hotel satisfaction of resort to right, making novation, it but had no after this claim, Ac- done which was without the consent the Hartford indemnity Indemnity Company, charge cident & company failure bank- the loss occasioned or .with Company, ruptcy Investment and the bank- of the Natchez parties accepting ruptcy T. The J. Y. and R. Burkes. security they accepted these must look to which *19 what- had, and succeed to than their against rights would have the Natchez ever the contractor Company, *20 222 Suggestion of Error.

On opinion J., of court on Ethridge, the the P. delivered suggestion error. of ap-

Suggestions of filed on of have been behalf error pellant appellees had in- which the have and of certain judges of this of of the dividual each consideration decided we have consideration, and after such division, they that should be overruled. earnestly appellant, insisted behalf it is

On of the attorney’s neither the fees, to that it was error allow attorney’s provided fees, and nor bond statute the In was, fee error. therefore, that the allowance of the appeal, re- case on the former the consideration of the ported Miss, page in 119 we that: 31, 366, 155 So. held by a in favor of a is contractor “When bond executed builder between the the to a contract which refers builder, requiring execute the the contractor to and contractor, performance contract, the and a for the faithful of bond specifications provides, general plans the terms, in building which to bond, and the reserved to be erected right option bonding company take the at its to over the fail, the contractor and finish the contract should rights, will be construed in connection such bond other in bond and a. to the made referred with contract apparent part is contract; where it from and,, of the bond to bond and contract referred a consideration bonding company, it the intention of that was required execute the bond the contractor to builder, and chapter it will be held 128, 1918, Laws 3, section a bond.” to such

Turning between contractor and the the contract to with the article bond, connection construed'in owner, provided: “It shall be the obli- contract, it is 30 of estimating every gation subcontractor contractor operation figure upon contract this work under a furnish bond the sum and bid to his to include within *21 Mississippi of re- conditioned as the law quires, the State of surety company satisfactory in a to the owner any pay or to the cost architect; contractor likewise of required of cost recordation contract bond and the required any of cancellation of the same. He shall also pay privilege for lien and certificates which secure required payment will him of before final made un- is der this contract. The bond shall also secure the owner performance the faithful of in ac- the strict contract, plans specifications, protect cordance with shall it against may the against all owner or liens claims that be filed building according the to the of laws the state Mississippi provide payment of and shall for the rea- of attorney’s sonable for fees enforcement con- the of the proceedings, tract- and' the institution of concursus if proceedings necessary.” such become given Under the contract which the bond was to .se- attorney’s provided expressly, the cure, fees were contemplation and it must have been within the of the parties making parties "looking the bond and the to it given displace that the bond was to the materialmen’s given liens the under 1 2. sections and But it is .statute proceeding Mississippi said that there is no such in as n proceeding. a concursus The contract was in drawn proceedings Louisiana where concursus exist; and it is substantially interpleader parties an all between interest- proceedings may they brought ed in such all be rights court at one time and all determined in one suit. proceeding substantially here The is a accord with proceeding concursus in Louisiana, and there is no error attorney’s attorney’s in the allowance of the fees. The appear large considering to be fees the function the attorney’s bringing it; but the chancellor had the matter proof, position him before with and is in better de- to termine the reasonableness of the amount of than fee is court. There no this is substantial .merit in con- the

224 appellant suggestion The tention in the error. of the change decision last does not decision, 535, 132 So. opinion 366, is referred to That in 155 Miss. 119 So. 31, opinion, beginning to the two are of the last in the together. parties have a constitutional be taken While embody private right in them and to contracts, make may Legislature yet stipulations they desire, as such provide rights, and laborers for materialmen law, under private displace;, and where which contracts cannot contemplated by gave contrae' bond contractor (cid:127) displacing the liens benefit of and thus secured the require- dispense with the materialmen, he cannot given the bond under section that ments statute *22 rights materialmen and laborers give shall secure the optional the to the bond or leave was, course, It of statutory given having bond, the force, statute in the but, bond, and, in the as must remain embraced conditions writing the of the the effect stated statute has before, suggestion provided. The in bond therein conditions the appellant behalf of the is overruled. of error on sug- Company appellee Williamson-Greer it is For the holding company gested had in that that we erred .this provision agree- right the bond. The of waived its under upon upon, the the to cause, made ment relied trial proposition as this reads follows: sustain Company re- the have “That said Williamson-Greer security a. the for said claim note of their ceived as Company, Inc., for the amount Investment Natchez by mortgage the a on Eola Hotel claim, secured Mississippi. Levy Building Natchez, at Office ‘‘ finally by held in if it this cause That should having hereinabove to that the bond referred as court Indemnity by & Accident the Hartford been executed conditions, surety Company on the terms and as shown as by guar- pleadings a in cause was is bond this anteeing performance part the faithful on the said & J. Y. It. T. Burkes, contractors, of their contract for Building the construction of said Eola Hotel under said project alleged by pleadings number 640, as the' this cause and same is still then that the said Wil- force Company judgment against liamson-Greer to a is entitled Indemnity Company & the Hartford Accident for the full amount herein sued for and demanded as herein- agreed alleged above and as in the cross-bill of com- plaint by Company, filed Williamson-Greer but the Hart- Indemnity Company agree' ford Accident does not that they additionally! attorney’s are liable for interest Company, ques- fees to said Williamson-Greer but the liability attorney’s tion of for interest and fees is left legal to the court aas matter of construction under the agreed contract bond; documents and it however, is that Company required said Williamson-Greer been has proceeding come into this as a creditor for the enforce- protection rights ment and of their it has been necessary employ attorneys, Engle for them to to-wit: Mississippi, they &Laub of Natchez, and that have there- attorney’s incurred reasonable fees services required required prosecution and to be in of their judgment; proceedings claim to final and that such have necessary by become reason of the failure of the con- pay J. & T. tractors, Y. Bi. Burkes, to the amount of their indebtedness to the said Williamson-Greer Go.” *23 Company

The counsel for Williamson-Greer seem to give part agreement small attention to the “and ’’ same erly still in is force. The effect of the decision form- Company

rendered is that the Williamson-Greer right, estopped right, waived its or was to assert its on by having obligations the bond reason of taken the Company by Natchez Investment secured lien on the building. party A hotel cannot thus deal with the bond ; payment he look the bond could and demand for the material furnished under but he cannot violate the it, re- terms of the bond as to what the contractor was to payment, ceive in ihe material materialmen, or the stipulated furnished.' The bond the materialmen paid money. an contractor should This was important provision surety protection for the on quite the contractor’s bond. There is a difference in hav- accepted by ing money, persons which is all in satisfac- taking all lien; tion of and in a. demands, mere note and bargain it is well known that for cash a can better by be secured than one on credit secured note and lien. Company security, The Williamson-G-reer took their they right against whether intended to their waive doing question controlling. or not in bond so is not The doing operate is: Did their conduct so as a waiver estoppel right of their to resort to the bond? The taken were not taken securities surety, the consent of the Company and we think the Williamson-Greer right waived its to resort to the bond and that it must security they apart which took look to the from the bond. Suggestion of error overruled.

Blum v. Planters’ Bank & Trust Co.

(Division 15, 1931.) A. June

[135 So. 29031.] 353. No. current the contractors notes thirty-eight gating were These notes thousand dollars. by procured assigned money the from banks to and banks obtained were Y. T. and the funds so Burkes, J. and B. paying into material that went for labor and used given building. them so were extended to The notes the appears payment. B. Burkes T. It that J. Y. and as of thirty-eight dol- thousand bank, to which the owed the money and disbursed, of notes was sums lars worth procured sum credit with the bank an additional between It was understood thousand dollars. fifteen Company, contrac- Inc., Investment the Natchez giving of the notes Burkes, Y. and B. T. tors, J. up- extinguish had lien that the contractors did not building, been under- have also this seems to on the assigned. by were which the notes bank to stood Indemnity Company, appellant, Accident The Hartford consent about this transaction its consulted was not arrangement also An was obtained. thereto was not by Company, Inc., Investment made the Natchez who had sold materialmen, certain other with Burkes building, go to hotel into the to the Burkes material

notes Company Orleans, & of New Bank Trust New Orleans assigned by Y. and J. the notes were to which Louisiana, R. Burkes. T. against hearing rendered a decree chancellor the On the in trustee Bartlette, T. T. J. and R. Burkes and Y. J. bankruptcy, and Hartford R. T. Burkes, for J. Y. and Company. Indemnity a said bond is That Accident performance the con guaranteeing the faithful bond Eola Hotel of1the and construction for the erection tract surety Mississippi, building on the and the Natchez, in respective payment sums liable for the bond is owing creditors, the due and to be and decreed forth, set or adjudging judgment the forth in the set claimants, Indemnity Company and J. Accident Hartford said jointly the said liable to Burkes, and R. T. Y. Burkes forth in the sum set due to each' amounts in the creditors adjudging the said sums interest on decree, in the per they cent from and at six were due date on the due paid. adjudged judgment a fee It also until date of attorneys representing Natchez Investment to the proceedings in the sum Company, in concursus Inc., attorneys’ to allow It refused dollars. of five thousand brought to the who were into court and fees materialmen seeking right preserve had filed cross-bills their what a fee but fixed would be reasonable material, finding made a of fact of what would be reasonable adjudicated liability be in favor of case, each should the by judgment setting court, said claimants this specifically out the amount each claimed. It reserved pro- claim the decree the future determination of the pounded Manufacturing Company, as N. 0. Nelson assignee doing of A. as the Acme Moore, W. business Engineering Company, had who leave of obtained

notes rights against Hart- their under the bond lieu of taking Indemnity Company. &> Parties ford Accident accepting Natchez Investment Com- the notes greater rights pany have such circumstances no under they assignors only

the had notes Inc., hotel, the Investment assigned. or not been transferred opinion the was in court correct are of the We attorneys allowing fees in- dollars to the five thousand proceeding, stituting the court was and that concursus the attorneys attorneys’ denying to the in fees correct also brought representing were who claimants or materialmen propound appeared in suit to their claims under in or the proceedings. statute not contract and the do The attorneys may payment contemplate who em- all attorney’s ployed, only but a fee to at- reasonable torneys proceedings representing known as concur- allowing proceedings. correct in sas The court was also on claimants; interest the claim the several such claims they date bore interest from the when were due unless contrary. generally is a rule there prevails contract to This to as to and no is contracts, reason shown as. why applied present it should not be case. judgment It follows from views that these persons, below court is affirmed as to the claims of all except that allowed to Walter Williamson and A. A. doing Company, & Greer, business as Williamson-Greer eight thirty-three for fourteen thousand hundred dollars forty-two judgment cents which is and the reversed petition parties, disallowed; and the all dismissed as to except Company, the Natchez Investment Inc. Affirmed Trolley O. L. as to the Coburn Track Bunn; Manufac- turing Company; Hockaday, Inc.; & Gordon, Gibbens Company; Drug Company; the R. Lieb Inc.; C. Natchez Company; National Show Case & Swartz Wal- Stewart; Company; ter Schultz; C. Cement Southern Truscon Steel Company; Company, Inc.; White Stone Woodward, Wight & R. Co., Limited; Jr.; Lee Parker, Scudamore, R. doing R. Jr.; Jr., Lee Parker, R. Hicks Parker, Company; Brick business as Natchez Burkett, C. R. doing business as Burkett Works; Sheet Metal W. A. Cypress Company; Geisenberger Jacobie; St. Bernard Drug Company; Bros. M. Phelan; P. Enochs Lumber Manufacturing Company; Company; & F. Southern G. Company; Feltus Bros. Hardware Chamberlain Metal Strip Ingalls Company; Capitol Weather Iron Works; Company; Company. Paint Glass Mosler Lock Safe & attorneys’ pro- Affirmed as to fees allowed concursus ceedings, and reversed as to Williamson-Greer & Co. Company. except Affirmed, as Williamson-Greer