172 S.E. 790 | W. Va. | 1934
This appeal involves the obligation of principal contractors *559 and their surety to pay the balance due from subcontractors for machinery used on the work, for repairs on the machinery, and for other mechanical supplies.
About the first of June, 1931, defendants Pinnell Pfost contracted with the State Road Commission to grade a certain roadway and executed a bond with defendant American Surety Company as surety. Shortly afterwards defendants K. J. Smith Son were given a subcontract to perform part of the grading. The Smiths then purchased from plaintiff National Equipment Corporation five new "dumptors" (dumping tractors) at the price of $32,325.00. The dumptors were operated by the Smiths on the work in question until March 1, 1932. On that date the Smiths were due the Equipment Corporation a balance of $17,243.75 on the purchase price and $1,278.40 for repair parts on the dumptors. The Smiths also owed plaintiff Bluefield Supply Company an account on that date of $6,431.81. The account embraced repairs on the dumptors, general mechanical supplies, and the rent on certain pieces of machinery used in this work. The circuit court found for the respective plaintiffs the several sums above enumerated, and decreed recovery thereof from all of the defendants. The principal contractors and the surety appealed.
The appellants contend that the bill is multifarious because the claims of the two plaintiffs are separate and distinct. The bond of the contractors is for the benefit of all who have claims against them. In order to preserve that common interest it is essential that all claimants be brought into the same suit. In such event, it is permissible to join them as plaintiffs. Lefever v. Thomas,
The appellants claim that the performance of the dumptors did not equal the representations which the Equipment Corporation made to the Smiths. The Corporation counters that failure of performance, if any, was due solely to the failure of the Smiths to render proper service to the dumptors. There is a mass of testimony pro and con. On this, the finding of the circuit court is against the claim and we cannot say the finding is wrong.
The condition of the bond required by Code 1931,
In Hicks v. Randich,
Consequently, the judgment is reversed entirely as to appellants and the cause remanded for further proceedings not at variance with the principles announced herein.
Reversed and remanded.