*1 case, granted in this the order hearing was plaintiffs I hearing reversed. want denying such might rights property be invaded whose the carriers think right might to demand permits valid had the not be if the permits question hearing of whether the on the and obtain a e., validly issued, the conditions which i. whether had been permit applicant to obtain such a had to meet order had hearing denying I such been met. think the Commission upon application of one so as above set out situated ground authority. acted in excess I concur on the hearing that when one asks situated as above provi- permit properly granted whether under the paragraphs sions of the first of section it must be two granted. al., et v. Benefit of McBRIDE al., for Use

STATE et (MELVILLE et al. CO. BLDG. CAMPBELL Interveners). al., et (77 341.) P. 1938. [2d] March Decided No. *3 Cheney, Jensen, Wilkins, City, Marr & Lake Salt appellant. Cline, Milford,

Cline, Sanford, Wilson & and Allen T. Iverson, Dickson, Musser, Ellis, Ball & Grant /. Parsons & George McCrea, Skeen, Lawrence, Skeen & N. all of *4 City, respondents. Lake Salt

LARSON, Justice. by materialman,

This is a a suit McBride Lumber Com- pany, who Campbell furnished materials to defendant Build- ing Company constructing for its use in improving and a highway county state in Millard under a contract with the State Road gave Commission. The contractor a bond to the state of with Surety Utah the American Company of surety, required statute. codefendant, York, as as

New contractor, who of the creditors are other interveners The pur- complaints in intervention filed the of court order plaintiff, complaint as well of To the to the statute. suant intervention, filed defendants complaint in to each claimed consisting denial that the amount of a answer jurisdiction plea on the owing, a to the and due and filed, prematurely and therein ground the suit was that * * “* deny that there alleged these defendants it is any between the contractor and been settlement has deny Commission, that there has been Road State settlement, after because expiration six months of between the contractor no final settlement there has been Road Commission.” State George intervener, Bushnell, they pleaded as As to one By agreement an accord and satisfaction. defense further hearing parties, cause was set on defen prematurely brought, plea all the action was dants’ desiring parties bring a determination on that issue before ing for the trial of the issues on the merits. witnesses other hearing, After the court held defendants on this plea hearing and fixed a time for further merits of sought prohibition the claims. Defendants then of writ acting court on claim that court was from this jurisdiction prematurely excess because suit was brought. The writ was December denied Building County, v. District Co. Court Millard 90 Utah 552, 63 P. 2d 255.

Twenty-two assigned ap- grouped by errors are and are pellant following propositions: under The trial (1) jurisdiction court was without because the evidence affirm- atively (2) shows there has no final settlement. Plain- agreed payment tiffs interveners would not be due until receipt by Campbell Building Company actual of the con- price tract from the State Road Commission. (3) trial refusing permit filing erred in court of amended an- Campbell Building Company swer complaint to the *5 (4) of There an and intervention Sumsion. accord George to the claim of satisfaction as Bushnell.

(1) prosecuted provisions The action is under the 17, 1933, chapter chapter, title R. Utah S. which far here, provides public as material that a contractor works obligee bond, proper must furnish to the state as a with surety, performance conditioned for the faithful of the contract and the all claims for fur- materials prosecuting nished and labor done in the work. The statute provides: then * * * “Any person who has furnished labor or materials * * * * * * any public work, for which not has may made, obligee intervene action commenced person adjudi- other on the bond of the contractor and have his claim * * * brought by obligee cated therein. If no action is within completion settlement, from six months and final or abandonment contract, any person supplied of the then who has labor or materials shall, application upon therefor, copy be furnished with a certified original bond, upon right of the contract and which he shall have a action, may surety, sue the contractor and his for his own * **

benefit, obligee, in the name of provided, that where by any such action is instituted such creditor it shall not be com- complete performance menced until after of such contract and thereof, thereof, settlement or abandonment and shall be com- year menced within one thereafter later.” Rev. St. 17-1-2. pertinent provisions foregoing of the sections are (a) against surety that an action will not lie until after completion of the work settlement, or abandon contract; obligee (b) ment of the can an commence against surety action within the first six months after completion and final settlement or abandonment con tract, securing obligee priority thus to the of its claim period and a six months’ in which to ascertain whether it has claim the contractor which it wishes to assert thereof; (c) and the amount other creditors of con period only, tractor have a six-month in which to commence bond, period begins an action on the which six months after *6 contract, abandonment, settlement, of the or Building year that event. after one terminates 552, County, 90 Utah 63 Millard District Court v.Co. Co., Surety Education v. Southern 255; Board P. 2d Arnold, C., 332; 268 D. 63, United States 287 P. 76 Utah v. States, Fidelity v. United 130; & Guar. Co. States F. United 365; Indem & Lancashire 342, 298 London App. F. D. C. 54 378, Smoot, App. 287 F. 952. D. C. nity 52 Co. v. not mean final the statute does within Final settlement disposition con- of all matters under the the time when the final settlement The time of tract. state, administratively bond, deter- has obligee the the in the contract has performance' under that mined obligee contractor, de- and the has the been made contract; due under the the amount termined any is, obligee it has has determined whether or not the surety against because of the contract- to assert the claims according obligations perform under the failure to to his or’s 38; Robinson, Cir., 2 v. 214 F. contract. United States Surety States, v. 240 36 Illinois Co. United U. S. S. Ct. 609; C., Arnold, F. 60 L. Ed. States v. 268 United D. Cir., 338; 130; States, 4 280 F. Arnold v. United Antrim Hannan, Cir., Lumber 18 F. 2d 548. Co. v. may understanding aid an this

It bear mind that only against surety. deals with actions the statute Claims against of creditors the contractor are not affected the opine may any We such claims statute. be asserted at time general within statute of limitations. It is sought surety only it is to hold when when re — covery provi is to be made under bond—that play. sions of the statute come into The restrictions are give obligee priority two-fold: To to determine and protect any have, may year claim it and to fix a one limita surety’s liability tion on the When, to other creditors. there fore, obligee opportunity has had an to determine if it any against surety, has claims same, and assert good there are why no reasons other creditors of the con- claims; permitted their to enforce not be should tractor surety why good should any reason there nor might claims, it be for which have permitted to be rid of promptly, as to be so liable, and settled determined the con- benefit of not for the The statute is the business. obligee, creditors, and for the benefit tractor but obligee therefore, When, has determined surety. owes what the contractor regular order administrative surety, it may have it, is, claims it what unreasonably not to so as promptly assert the same must take in which to It six months delay has other creditors. it it considers the amount determines action. When it such course, has, contractor, determined and de- owes the *7 so, knowing it, the contractor owes what ducted sum period priority may have, of the six months’ of claims it begins against run. right other creditors Such to sue as special privilege period the benefit of six months —a —for obligee, against by creditor, a starts run- suit obligee ning for of the creditor as soon as the the benefit against any, what, it has determined if claims has on the The time of such determination contractor bond. under the time of final settlement the statute. therefore justify finding Does the record that determination such prior had been made six months to the commencement of supplied by All the evidence on matter this action? this testimony Wright, engineer of K. chief for the C. State Commission, George Vories, president gen- Road manager Campbell Building Company. eral the defendant Wright testified: “Q. please you your knowledge if know State own whether this project job Project finally accepted or known as Federal Aid 68-B was

by the Road Commission? A. Yes. State “Q. Well, you project finally do have the date when the was ac- cepted Road A. Yes. State Commission?

“Q. you give me, please? May 3,1933. it Can A. “Q. you know, Wright, Do Mr. whether or not a final was estimate compiled by ever the State Road Commission? A. Yes. was give final estimate you A. The “Q. me the date? And can engineer office the resident to this it was submitted And made— ought say May 29, that I further charge 1933. of construction in finally prepared June in office on this was the estimate accepted Wright, Now, Road Commission “Q. the State Mr. when accepted you without project, or not it was state whether can this against making any further claim Road Commission the State damages delays, is, contractor, or for unfinished work that anything Yes, A. was. there or of that sort? you claims “Q. had further claim or no You mean A. None. the contractor? by your “Q. which as shown books was the balance And that estimate Campbell Build- that it to the then claimed owed Road Commission ing Company A. Yes. on this contract? reporter Plaintiff’s to mark this as I like the Cline: would “Mr. might consisting A and A, mark Exhibit of two sheets. We Exhibit A-l. just Cline) you “Q. (By Wright, a moment have testified Mr. Mr. sheet, you ago I ask the sheets and will whether to a final estimate you of which A and A-l were the sheets Plaintiff’s Exhibit marked testifying? A. Yes.

were estimate, .question. you compiled “Q. Now, When this one other you determined, Road Com- far the State or not so as state whether concerned, which the State the final balance or settlement mission was due from it to the stated claimed was Road Commission Building Company? A. Yes. “Q. figures represented here And whether or not the state Road Com- the balance the final settlement in so far as the State mission was concerned? A. Yes.” *8 testimony, objection, and

Such is the admitted without accuracy questioned. same, defen- is not To offset the testimony He dants offered of Vories. testified that the A-l, after he A the final received Exhibits estimate commission, sheets, engineer he contacted the chief for the claiming money Campbell Building Company more due the estimate; than the state had allowed them on the final that accept estimate; he would not correct final the state’s that company more; he claimed the to much that entitled argument, after some the sheets which had been marked partial penciled esti- to read “6 estimate,” blue were “final owing never admitted mate”; commission the road that sheet final shown on the estimate amount the more than building company a 1933; received check the of June $7,131.48, all the commission which was for the state from $7,297.80, the the owing and above sum of over admitted contract, retained the state until per of the total cent payment of all an affidavit furnished the contractor bills; affidavit was never that such material labor and 9, 1933, May claims furnished; the state made no that after work, damages for defective un- against the contractor contract; work, any claims under finished $43,000 building company commission the road sued amounting $60.65, two small items recovered by the in the final estimate made had been overlooked which state. engineer,

Wright, that after testified showing company all labor refused to furnish affidavit bookkeeping purposes,” paid, and material bills “for changed “6 to read marked “final estimate” were sheets passed to partial so the same would not be estimate” per re- of the 10 cent the state auditor for was furnished. That is tained until affidavit the final It defendants’ contention that since record. accepted by the contractor it was not a was not estimate developed settlement; it later that the esti- and since $60.65, the exact amount due the mate was in error as to contractor, these settlement. Neither of was not is tenable. the determination

“Final settlement” under statute is obligee it has claims as whether contractor, contractor. and what it considers it owes the by the fact that the contractor This could not be affected may agree the determination. The most with thing obligee right essential whether the asserts against the recover under the bond on a claim con- tractor, claim, may any, except if as such amount affect the

336 question surety under the bond. it asserts af not settlement” is there has been as to whether “final by rejection of the statement by acceptance or fected Cir., 338; States, 5 280 F. United Arnold v. the contractor. States, 214, 240 36 Ct. Surety U. S. v. United S. Illinois Co. C., Winkler, F. 609; 162 v. C. 321, United States 60 L. Ed. 782, 783; Bailey, C., 401; D. 207 F. 397, v. United States Cir., 461, 2 A. States, 251 F. 163 C. C. v. United Robinson Co., Cir., 958, Guaranty 637; 254 F. v. Title United States by that there is it affected the fact C. A. 320. Nor 166 C. may dispute the items or some of them there as to be some found, (and him) from to the contractor after due from States, supra; Surety obligee. United Illinois Arnold v. S., Ct. Ed. Bear 240 U. 36 S. 60 L. Co. v. U. S. provided forbearance in the is for in mind that the statute obligee against priority protection of claims of the running surety, and starts the benefit of the cred itors. brings question (2). payment to

This us Was time building company obligations of its to the interveners upon receipt moneys conditioned the actual it of the question plain- from the state? relates This claim of Forge tiff and the interveners Structural & Steel Company court, and J. M. Sumsion. The trial in a finding fact, question adversely answered this being case, the defendants. This a law if there is evidence reasonably tending finding in the record sustain court, weigh the trial we will not evidence disturb finding. plaintiff As to the claims of and of the Struc- Forge Company, tural & Steel while the evidence is all parole conflict, and in ample think we there is evidence to findings against sustain the court’s defendants. claim,

As to the Sumsion defendants assert that the writ- Sumsion, ten contract subcontractor, expressly pro- with vides that is not to be made until final has been received from the state company. The statement paragraph is the final of a letter from the *10 confirming agreement, building company an oral ad- by It reads: correct Sumsion. to be mitted monthly up “Payments to of will be made the value the work 90'% by Engineer, completed as and’ allowed the and when we our receive payment payments from the Final made on State. will be final estimate payment Engineer by when final is made to us the State gravel the and subbase work.” for clearly provides building company This that as the re payment engineer’s monthly ceives from the state on esti mates, paid per is to be 90 Sumsion cent of the total value by engineer, estimate, gravel allowance the in such against subbase material. There is thus held back Sumsion, who was not a materialman but a sub contractor, per (the 101 cent of the estimate same as general protect against the contractor) failure complete the month, contract. From month to the as building company payments received state, from the it made payments account, to Sumsion on per but never the full 90 cent by engineer’s of the amount shown the estimate to represent jobs by materials delivered on the Sumsion. money Part of the thus conceded due Sumsion was each by building month company retained for its own uses. gave judgment trial court to Sumsion for these amounts withheld, with interest money thereon from the date the was by building received company. This was not error and was in direct accord with the terms .of contract.

But as to payment, the final representing the amount due under monthly the final per estimate and the 10' cent regularly by state, withheld it is contended that such sum payable was not building until the company received payment last and final from the state. This conten by appellant tion specious. condition, Such point- edoutby Building Mr. Chief Justice Folland o. v. District Court Millard County, C 90 Utah 2dP. would result in an impasse, because the build ing company could not payment obtain final from the state entitled to and Sumsion paid Sumsion it had

until paid company in full. had until payment provide. The not so the contract does provision of And estimate made on payment will be is: “Final provision payment us is made to Engineer, and when added.) (Italics gravel work.” and subbase the State for to be made that final mean can This work, performed completed has his he has when Sumsion engineer’s estimate, full, so as shown gravel all and subbase work. made the state can be gravel engineer in his estimate that the certifies When *11 completed the hauling is all done and and subbase work state, can have no claims the state so satisfaction work, for that such esti- the contractor and back building company, then paid the Sumsion to be mate contemplated payment That paid final in full. it was not his money until wait for his the that Sumsion should actually payment company from state received its the by language by company the is further evidenced the used * * * payment “Final will itself in the contract: be * * * made is made when to us gravel and loork.” Had the statement state subbase for stopped “state,” appel- with work would be color to claim, company phrase lant’s but itself added the “for gravel and subbase work.” We cannot assume this was meaningless. It can indicate that Sumsion was to be paid gravel all when and subbase work done to the was approval ruling findings of the state. The and of the trial court on this matter are in error.

(3) Was there an accord and satisfaction on the claim George of stipulation Bushnell? The evidence consists aof facts, of some a letter from company, Bushnell to the and company Bushnell, check issued and the letter of stipulation transmittal with was, the check. The effect, September 16, 1932, April 26, from (Abs. until 135-8), company Bushnell rented to the an automobile and project trailer for its use on suit, involved in the and use; value such paid reasonable for that $226 to be was value; during this Bushnell time was the reasonable company; May for employed in other services was company complaining 26th, wrote the a letter Bushnell said, accounts, of in which he inter about nonsettlement your job 17,000' alia, you I went on if “The miles anything it worth I would like to know don’t think it.” (Abs. 216.) The letter of transmittal indorsements on the check follow: enclosing pay- “Dear We are herewith Sir: check $25.95 which is performed by you

ment in full for all labor and materials furnished project. pays you on the above named This in accordance with the you you time in to turned us the last time in our were office. very truly, “Yours “Campbell Building Co. Utah.” it, May 10, 1933, payable “A check is attached to and dated to the George Bushnell, ‘Apr. order of L. appears: In the corner $25.95. this Apr. days $3.30, 17 to 27. 11 at California $36.30. Paid Western State Payment Life Ins. $10.35. Co. Total $25.95. full on F. A. P. No. ” Dog Valley 68-B. —Kanosh.’ “On the back is the endorsement: “ acceptance by payee ‘Endorsement this draft constitutes performed full all labor or materials furnished him 68-B, hereby on F. A. materials, P. No. certifies that all bills for board, feed, etc., lodging, fully paid by have him and that he has outstanding chargeable against no bills of nature which are *12 Campbell Building Company Utah, project. Signed George or this ” L. Bushnell.’ stamps paid.”

“It the shows it was following That is the whole record. The pertinent are the facts: Bushnell trailer; had a claim for of car rent and he also a had claim hand; for time as a labor the letter of transmittal the check in; was for time indicates turned rent; and not for car the indorsement on the front of the check it “Apr. shows was for time from Apr. to17 days 11 at $3.30.” indorsement on the back does not indicate it was for car rental. Taken in connec- tion with the letter of transmittal and the notation the

340 full clearly the check was check, indicates that it face charge account, had no and only the labor or the car and trailer. rental of the account for to reference genuineness dispute the as to of a no evidence There is accord and claim, upon which to found an the amount of theory is established satisfaction, that such under the Skeen, Ashton 85 Utah of a check. v. indorsement an 1035; also, See, L. annotation 34 A. R. P. 1073. 2d assignment must fail. This A. L. R. refusing permit to de-

(4) err in trial court Did the Building Company file amended to an Campbell fendant complaint in of J. intervention M. Sumsion? answer to the complaint intervention, in defen- filed his After Sumsion A putting in issue three dants filed answer matters: price in of the work done Sum- difference of the $41.99 sion; plea a not to that under the contract Sumsion was building company pay- paid the received its final be until state, nothing ment the there claim- from and so was due ant; jurisdiction plea pre- to the and suit was maturely brought. court on the The trial first took evidence prematurely brought, to whether the suit was issue as having defendants, determined that issue in due upon course the case trial merits as set to the claims plaintiff interveners. trial, When matter called for com- pany tendered and asked leave to file an amended answer complaint in intervention of J. M. Sumsion. Counsel objected grounds filing, for Sumsion but the therefor appear do not the record. argument, After some following court made the order: appears “It court the additional matters set out in Company Building complaint amended answer of the to the bring of J. M. Sumsion does in new issues that should intervention long pleaded before, having have been this case been set for trial nearly month, court, or more than a month before this term of having previously appears set for trial. It to the court that objection should be sustained. The court therefore denies the request to file the amended answer.” *13 ground assigned precise on ruling error on the as The ruling, that it introduces new is- made the the court which complaint in inter- tried. The should have been which sues 5, 1934. At that time the was filed June vention up pro- company all matters in the knew it sets 7,May 1935, posed answer. the build- amended On company original ing until filed answer. Not trial, morning the cause for March was called trial, than after and more a month the cause was set for building company propose give or did serve or notice issues, although intention amend of its to or to raise new it had the action known since was commenced of the mat- sought may set out in add ters its amended answer. We company pray any does not relief under the original ; amended answer not asked under the answer no prayed for; judgment counterclaim; (cid:127)set-off no of, no affirmative relief upon, is asked because or founded alleged proposed the new matters in the amended answer. The writer and opinion Mr. Justice MOFFAT are of permitted filing court should have of the amended answer, but the other opinion members of the court are of ruling that the was on a matter within the discretion of the court and the record does not show an abuse of such dis- ruling, cretion. therefore, will not be disturbed. Finding record, judgment no error in the is affirmed. respondents. Costs to

FOLLAND, J., JJ., C. MOFFAT, and HANSON and concur.

WOLFE, Justice.

I interpret concur. I opinion do not laying down any by implication rule money paid otherwise that contractor on estimates the State Road Commission any are in sense be paid considered as on behalf of or subcontractor or as a for the work of such .subcontractor. The upon estimates which is made

342 the con- under what has been done simply estimates are Commission and State Road the contractor tract between by regard been done subcontractors what has without owing by them by or what materialmen supplied deducting accordingly Payment after is made contractor. payment to care as a final take reserved per cent to be road commission. But as between claims stipulation Sumsion, Building Company Campbell to the latter “when the should be made gravel by the payment made to us State for interpreted con- work,” to mean that must be subbase parties templation the final such of these two having made the latest was to be considered work at per paid time when the 90 cent was the state at that Building Company none and that of was part per cent reserved the state. DIST. al. CITY SCHOOL v. KOWALLIS

LOGAN et February (77 348.) P. No. 5953. Decided [2d]