183 S.E. 914 | W. Va. | 1936
This suit depends upon whether one who sold crushed stone to a structural contractor should be classed as a subcontractor or a materialman.
The plaintiffs worked for, or furnished materials to, Foster Bland, while he was engaged in the preparation and delivery of crushed stone to defendant, A. G. Rothey. The latter was constructing a dam for the city of Parsons. Rothey paid Bland in full, but Bland did not settle with the plaintiffs. They recovered herein a decree in the circuit court against Rothey and his surety, the defendant Seaboard Surety Company, for the several balances due them from Bland. The plaintiffs contend that Bland was a subcontractor, and for that reason, Code
Rothey paid a unit price per cubic yard for delivered stone. None of the plaintiffs were employed by, or had any contractual relations with, him during the period in question. None took part in the actual construction of the dam. He did not own the stone crushing plant and had no supervision over the plaintiffs or over Bland's work.
This dam was a P.W.A. project, and Bland's contract with Rothey made reference to that fact and required Bland to abide by the P.W.A. rates and hours of labor. Most of the plaintiffs were certified for employment by the National Re-employment Service. Their counsel stress those circumstances as bearing upon the relation between Rothey and Bland. The only bearing any of those facts have is the following definition in the P.W.A. specifications: "The term subcontractor, as employed *96 herein, includes only those having a direct contract with the contractor and includes one who furnishes material worked to a special design according to drawings and specifications of this work, but does not include one who merely furnishes material not so worked." That definition opposes the contention that Bland was a subcontractor; for while the stone was crushed to specified sizes, it was not "worked to a special design according to drawings" of the work.
Counsel place some reliance on a provision in the Bland-Rothey contract giving Rothey the right to take charge of Bland's plant in case of his default. That provision was dormant so long as Bland performed his contract. Therefore, the provision conferred a right upon Rothey without changing, in any particular, the standing of Bland as, and while, a furnisher of material.
Counsel emphasize the provisions of Code,
Our statute does not in terms define either a subcontractor or a materialman. A subcontractor, ordinarily, is one to whom the principal contractor sublets a portion or all of the contract itself. Collins v. Board,
The decree is reversed and the bill dismissed.
Reversed; bill dismissed.