42 S.E. 858 | N.C. | 1902
The statement of case in the appeal of the Post-Glover Electric Company and Illinois Insulated Wire Company in this case, (364) ante, is a sufficient statement in this appeal. The defendant engineering company entered into a contract with the town of Gastonia to construct a waterworks and sewerage system and an electric lighting system in and for said town of Gastonia, and with its co-defendant, the American Surety Company of New York, entered into a bond to pay claims for materials used and work and labor done in the construction of said systems, and there is a balance due on said contract by the town of Gastonia, which is claimed by the said engineering company and also by persons who furnished material and performed work and labor in the construction of the said systems, under the contract between the town and the engineering company, the said balance being $1,560.86; and the other plaintiffs seek by this action to charge the other defendant, the American Surety Company, upon its indemnity bond for $3,000, given as aforesaid, for the amounts alleged to be due them for work and labor performed and materials furnished in the construction of said systems; and to the end that the amounts due for materials and labor may be determined all persons holding such claims were properly made co-plaintiffs.
The contract between the town of Gastonia and the engineering company contains the following:
"Section 1 of the contract provides that the contractor is required to furnish all materials and labor required in the construction of the public works embraced in said contract."
Section 5 provides that "the contractor further agrees that he will and, concurrent with this contract, does execute a bond in the penal sum of $3,000, in such form and with such sureties *261 as may be approved by the mayor and aldermen of (365) the town of Gastonia, conditioned to indemnify and save harmless said town and board from all suits . . . brought against said town or said board, or both, . . . for or on account of any injuries or damages sustained or received by any person, structure or property by or from said contractor, . . . or by or in consequence of any act or omission of said contractor, his servants or agents, and the faithful performance of this contract, and for the payment of all materialused and wages of all laborers employed by said contractor."
Section 10 provides that the said contractor hereby further agrees that it "shall not be entitled to demand or receive payment except in the manner set forth in this agreement, and further agrees that it will produce fullreleases of all claims from all persons who have furnished machinery orlabor for the work, whenever the board may require it."
The bond executed by the surety company provides that "if the above bounden, the McEntee-Peterson Engineering Company, its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by and well and truly keep and perform the terms, covenants, conditions and agreements in such contract contained, on its part to be kept and performed, and each of them, at any time, and in the manner and form therein specified, then said obligation shall be null and void."
Though no mechanic's lien could be filed against the property in the hands of the town, it was competent for the parties to contract, and they did contract, that the engineering company should pay for "all materials used and wages of all laborers employed by said contractor," and the surety company became responsible for the execution of that stipulation. The engineering company has defaulted in this respect to an amount greater than the penalty of the bond executed against the American Surety Company, to-wit, in the sum of $3,907.64, for (366) material furnished by several parties who have been made co-plaintiffs in this action for the purpose of ascertaining and determining the amount of the indebtedness severally due them.
The town desired to know whether it should pay said balance to the engineering company, or (in view of the fact that it had stipulated with said company, and required surety, that the company should pay off all claims for labor and materials before calling on the town for settlement) whether it was not its duty to require compliance with this requirement in favor of the claimants for labor and material. Those claimants, being the beneficiaries of the contract, could have brought their separate actions on said contract against the engineering company and *262 its surety, and it was eminently proper and saves multiplicity of suits, the time of the court and unnecessary court costs, that they should be co plaintiffs in this action, to the end that the entire matter should be settled and determined in one action.
In Gorrell v. Water Co.,
The proposition laid down, with citation of authority in Gorrell v.Water Co., supra, had been intimated, without actual decision in Haun v.Burrell, 119 N.C. at p. 548, and Sams v. Price, ib., 572. It has since been expressly held in Shoaf v. Insurance Co.,
Gorrell v. Water Co., supra, has been cited as authority inLacy v. Webb,
The former decisions of this Court (Morehead v. Wriston,
His Honor properly gave judgment in favor of the material and labor men, plaintiffs herein, against the defendants, the engineering company and its surety, for the undisputed amount of their claims, after first applying thereto the balance due said engineering company by the town.
The judgment should be reformed, however, by striking out the credit of $150 allowed the town for counsel fees, expended in defending actions brought by the Post-Glover Electric Company and the Illinois Insulated Wire Company, to subject by garnishment the aforesaid balance of $1,560.86 to payment of indebtedness due them by the engineering company. It was simply the misfortune of the town that said actions were brought, and there is no stipulation in the contract of the engineering company or of the American Surety Company covering responsibility for counsel fees in defending an action of that nature.
As thus modified, the judgment of the court below is
Affirmed. *265
Cited: Voorhees v. Porter,
(371)