169 S.E. 525 | W. Va. | 1933
In this suit the seller of two Fordson tractors which were used and entirely worn out in the construction of a state road by the contractors, recovered a joint judgment in the circuit court for the unpaid balance of the purchase price of the machinery from the contractors (now insolvent) and the surety on their bond. The surety alone appealed.
The bond, executed in 1927, was in compliance with Code 1923, chapter 43 (Public Highways), section 25, and is conditioned to "pay all and every person furnishing material or performing labor in and about the construction of said roadway." It is obvious that the words "labor" and "material" as ordinarily defined, do not embrace tractors. Counsel for Mr. Rhodes contend, however, that as a road is a structure (underState v. Indemnity Co.,
The case directly in point is our own case of Morton Co. v.Casualty Co.,
Counsel place special reliance upon the case ofJulian v. Cavin,
This cause was submitted upon an agreed statement of facts, which does not mention the relation the tractors bore to the regular equipment of the contractor. We naturally infer that the tractors were regular equipment. But as the parties have agreed to the facts, we prefer that they themselves should classify the tractors rather than that we should indulge our inference.
Accordingly, the decree of the lower court is reversed in so far as it finds against the surety on the tractors, and the cause is remanded for further development.
Reversed and remanded.