134 So. 18 | Ala. | 1931
Lead Opinion
The legal questions involved in this appeal have been decided and settled by the opinion of this court in the companion case of United States Fidelity Guaranty Company v. Benson Hardware Company,
As to Exhibit A, the proof shows that the material was sold and accepted for the road project covered by the bond, and while there is a contention that some part of it was diverted or used in another contract or project, appellant has not met the burden of showing the amount so used and the value of same.
The judgment of the circuit court is affirmed as to this claim.
The judgment of the circuit court as to this intervener is affirmed.
The judgment of the circuit court as to this claim is affirmed.
It is sufficient to suggest, however, that the evidence in support of this claim has been examined, and shows that the lumber was specifically sold to be used in project 273, and that some or all of it was so used. At any rate, the appellant has failed to overcome the intervener's prima facie case by showing how much, if any, was used in other jobs.
The judgment of the circuit court as to this claim is affirmed.
Appellant contends that much or a good portion of the material was used in culverts not specifically mentioned or covered by the original contract, but covered under a subsequent agreement or extension, and was not therefore covered by the bond. The proof, however, shows that this was but an enlargement or extension of the same project.
The contract provides: "The Contract shall include the Proposal, Plans, Specifications and Contract Bond, also any and all Supplemental Agreements required to complete the construction of the road in a substantial and acceptable manner." We therefore hold that the bond covered all agreements for the construction and completion, including extensions and enlargements, of the project.
The trial court rendered a judgment for this intervener for the full amount of the account, including the item of $740.01 for "pipe and connection." It seems that this piping was not used or consumed in the job, but was but a part of the equipment used in connection with the performance of the contract, just as teams, machinery, etc. The proof shows that this piping was used only temporarily in supplying water to the works, and was taken up and removed when the job was completed. The trial court erred in including this item in the intervener's judgment, and the judgment of the circuit court as to this intervener is reversed, and the cause is remanded.
There are numerous assignments of error relating to the rulings upon the evidence, and we have considered all of them that have been sufficiently urged in brief, and find that they were either free from error or without injury if erroneous.
The judgment of the circuit court is affirmed in part, and reversed and remanded in part; the costs of this appeal to be taxed one-tenth to the Young-Vann Supply Company, and the balance to the appellant.
GARDNER, BOULDIN, and FOSTER, JJ., concur.
Addendum
The appellant insists that the opinion does not deal with the question as to whether or not the main suit, that is, of the Andalusia Company, was brought within sixty days "after the complete performance of said contract and final settlement thereof," as required by the statute. Laws 1927, p. 356, § 28(e). This case was governed largely by the opinion in the companion one of U.S. Fidelity Guaranty Co. v. Benson Hardware Company,
Application is also made by one of the interveners, the Young Vann Supply Company, that the judgment as to their claim be corrected and affirmed and not reversed. This application is granted, and the judgment of reversal is set aside, and their judgment is reduced to $1,562.07 and affirmed.
The judgment as to cost unchanged.
GARDNER, BOULDIN, and FOSTER, JJ., concur.