138 S.E. 121 | N.C. | 1927
Civil action in the nature of a creditors' bill, brought under 3 C. S., 3846(v), to recover of the defendant, C. W. Lacy, road contractor, and the surety on his bond, for materials furnished and labor performed in and about the construction of a road project.
The case was referred to Hon. W. C. Ervin under the statute. Upon the coming in of the referee's report, exceptions were duly filed thereto by the Southern Surety Company, and heard before his Honor, Raymond G. Parker, judge presiding, at the February Term, 1927, McDowell Superior Court, at which time all exceptions to the referee's report were withdrawn save two, the first of which was directed against the claim of Dempster Construction Company for the rental of a steam shovel, and the second was directed against the claim of M. L. Good for the rental of a steam boiler, both the shovel and the boiler being used by the contractor in and about the construction of the road in question.
From a judgment affirming the report of the referee, in which it was held that the bond was liable for both claims, the Southern Surety Company appeals, assigning errors. On 26 October, 1922, C. W. Lacy, road contractor, entered into a written agreement with the State Highway Commission to construct a section of road in McDowell County, known as Project No. 847, in which it was stipulated, among other things, that for and in consideration of the price agreed upon the contractor was "to provide *752 and furnish all materials, machinery, implements, appliances and tools, and to perform the work and labor required to construct and complete" said road project; and to insure compliance with the terms and conditions of said "standard State Highway contract" in all respects on the part of the contractor, the State Highway Commission took from the contractor, as principal, and the Southern Surety Company, as surety, a bond in the sum of $37,690, conditioned for the faithful performance of the contract, and that the principal should "well and truly pay all and every person furnishing materials or performing labor in and about the construction of said roadway all and every sum or sums of money due him, them, or any of them, for all such labor and material for which the contractor is liable."
It is found as a fact that "much of the roadbed was blasted through hard rock, and that the steam shovel and the boiler, used to operate the drills, etc., were necessary to the proper performance of the work of construction." The contractor rented the steam shovel from the Dempster Construction Company and the boiler from M. L. Good. The claims for both are now due and unpaid.
The sole question presented by the appeal is whether the renting of these machines to the contractor was "furnishing materials" or "performing labor" in and about the construction of said roadway within the meaning of the bond in suit. If so, it is conceded that the judgment is correct, and ought to be upheld; otherwise, not. We think the judgment must be affirmed on authority of what was said in Scheflow v. Pierce,
The renting of the machines in question was but the substitution of mechanical power for manual labor. Taylor v. Connett, 277 Fed., 945;Bricker v. Rollins Jarecki, 173 Pac. (Cal.), 592; Hansen v. Remer, 200 N.W. (Minn.), 839; Multnomah County v. U.S. F. and G. Co., 180 Pac. (Ore.), 104.
In Miller v. American Bonding Co.,
In Dawson v. Northwestern Construction Co.,
In Title Guaranty and Trust Co. v. Crane Co.,
In U.S. Fidelity Co. v. Bartlett,
In Illinois Surety Co. v. John Davis Co.,
In Brogan v. Nat. Surety Co.,
The principle to be deduced from these and other like decisions is that such bonds are construed liberally for the protection of those who furnish labor and materials in the prosecution of public works (Electric Co. v.Deposit Co.,
The cases of Electric Co. v. Power Co.,
A careful perusal of the record leaves us with the impression that the judgment is correct, and that it should be upheld.
Affirmed. *754