Summary
In Arkansas Fuel Oil Co. v. Trinidad Asphalt Mfg. Co., 189 Miss. 366, 198 So. 41 (1940), this Court held that the statutes relating to the bond for highway work "... impose liability upon the original contractor to pay all persons who furnish labor, material, equipment or supplies for, and in the course of, the performance of the contract, and this includes materials and supplies furnished to a subcontractor, as this Court has several times held."
Summary of this case from Mississippi Road Supply v. Western CasualtyOpinion
No. 34215.
October 7, 1940.
1. HIGHWAYS.
The statute imposing liability upon original contractor to pay all persons who furnish labor, material, equipment, or supplies for and in the course of the performance of contract, includes material and supplies furnished to a subcontractor doing highway construction work (Code 1930, sec. 5009).
2. APPEAL AND ERROR.
Where testimony was admitted without objection showing that supplies were furnished on a public highway contract, contractor could not escape liability for supplies furnished to subcontractor on ground that there was no allegation that supplies were furnished on a public highway contract and that there was a variance between the declaration and proof, since the objection should have been made when the testimony was offered and it was too late to raise the question for the first time on appeal (Code 1930, sec. 5009).
APPEAL from the circuit court of Yalobusha county; HON. JOHN M. KUYKENDALL, Judge.
Cowles Horton, of Grenada, Stone Stone, of Coffeeville, Green Green, of Jackson, and H.C. Walker, Jr., of Shreveport, La., for appellant.
Appellee, principal contractor, was unconditionally obligated for material and equipment supplied to a subcontractor for performance of contract with Mississippi State Highway Department by Code Section 5009.
Miss. Code, sec. 5009; Shruptrine v. Jackson Equip. Co., 150 So. 796, 168 Miss. 464; Oliver Construction Co. v. Dancy, 102 So. 568, 137 Miss. 474; Davis v. D'Lo Guaranty Bank, 162 Miss. 829, 138 So. 802; Linde Air Products Co. v. Am. Surety Co., 168 Miss. 677, 152 So. 292; City of Winona v. Montgomery County, 170 Miss. 824, 155 So. 172; U.S. v. Am. Surety Co., 200 U.S. 197, 50 L.Ed. 437; Surety Co. v. Hall Miller Decoration Co., 104 Miss. 626, 61 So. 700; Standard Oil Co. v. Nat. Surety Co., 143 Miss. 841, 107 So. 559; U.S. Fidelity Co. v. Yazoo County, 145 Miss. 378, 110 So. 781; Day v. Royce Kershaw, Inc., 185 Miss. 207, 187 So. 222; U.S.F. G. Co. v. Plumbing Wholesale Co., 175 Miss. 675, 166 So. 529.
Under Section 5009 and under the contract between defendant and Russell, when plaintiff had furnished to Russell, subcontractor, material, equipment and supplies, utilized in performing defendant's contract, there was no right in Russell or the appellee to deprive plaintiff of the payment due.
Russell's acquisitions as subcontractor under appellee's contract with the State Highway Department of material, supplies, and equipment requisite for performance of appellee's contract imposes per se liability.
Lee v. Newman, 55 Miss. 374; Hartford Acc. Ind. Co. v. Nelson Mfg. Co., 291 U.S. 358, 78 L.Ed. 845; Hartford Acc. Ind. Co v. Natchez Inv. Co., 155 Miss. 31, 51, 199 So. 36; U.S.F. G. Co. v. Parsons, 147 Miss. 335, 112 So. 469, 53 A.L.R. 88; Miss. Code, sec. 5009.
The purchase of equipment, supplies and material by a subcontractor utilized in performance of the principal contract with the Highway Department determines liability.
The action here was not on a bond, but on an obligation imposed by law upon a principal contractor for a public road contract to those who had furnished to a sub-contractor necessary equipment and supplies.
The appellee did not set up any non-joinder of the Surety Company, surety on his performance bond, did not question that there was a public contract with the Highway Department, which was being performed, but approved that expressly, and so having done, there arose that liability for equipment and supplies demanded by appellant.
Kimmons Upchurch, of Water Valley, for appellee.
There is no testimony whatever in the record showing express authority in J.H. Potter to bind appellee in the purchase of goods for a sub-contractor, H.A. Russell.
There was no implied authority in Potter to make such a contract under the decisions of this court.
Gray Lbr. Co. v. Shubuta Motor Co., 169 Miss. 393; Hopkins v. Buckley Terry Co., 111 Miss. 621; Meyer et al. v. Baldwin, 52 Miss. 263; Coulson v. Stevens, 122 Miss. 797, 807.
A careful reading of the brief submitted by counsel for appellant indicates clearly that they do not rely on the case made by the declaration on file and on which the suit was tried, but on the contrary they are relying on the statute, Section 5009 of the Code of 1930, as amended. In each one of the questions raised in their brief the real reason given for their contention is that Section 5009 of the Code governs and that, therefore, any instruction given and any evidence admitted or excluded is erroneous because under said section the appellee is liable for the debts incurred by the sub-contractor. As to this contention we answer that no suit was entered on said bond, and there was no claim that there was any liability under the bond statute. The declaration in this case alleges liability on part of appellee on open account, and there is nothing said about a contractor's bond or any statutory liability.
The plaintiff must rely on his declaration, and if he fails to state a case he cannot proceed.
Sec. 521, Code of 1930.
There is nothing in the declaration that liability is claimed on account of the bond or that the plaintiff will rely on any statute.
In the case of Gulf Research Development Company v. Linder, 177 Miss. 123, the court held if the action was founded on any statute the plaintiff must state in the declaration the facts necessary to inform the court that the case is within the statute.
Appellee was the original contractor for the construction of a federal aid state highway known as Highway 54, and the particular work was designated as PWS 45, Part 2 of U.S. Road Program, the direct contract being with the Mississippi State Highway Department. One Russell was a subcontractor on the work, and during the performance of his part of it, he procured from appellant, tires, tubes, and gasoline which were used in and on the trucks employed in the performance of the road work under the stated contract.
The statutes applicable to contracts of the kind here in question, and particularly Section 5009, Code 1930, impose liability upon the original contractor to pay all persons who furnish labor, material, equipment or supplies for, and in the course of, the performance of the contract, and this includes material and supplies furnished to a subcontractor, as this Court has several times held. Shuptrine v. Jackson Equipment, etc., Co., 168 Miss. 464, 468, 150 So. 795; Oliver Const. Co. v. Dancy, 137 Miss. 474, 498, 102 So. 568, and others.
Appellee contends, however, that the declaration makes no mention of the statutory obligation or that the supplies were furnished for, and in the course of, the performance of a state highway contract, but that the allegations are as if a simple action on open account. The invoices filed as an amendment to the declaration contained notations upon their faces which point to an averment that the supplies were furnished on a public highway contract; but if it be conceded that they do not, nevertheless testimony was admitted without objection which presented all the elements of the proof necessary to bring the case within the statute and the cited decisions. If there was a variance between the declaration and the proof, objection should have been made when the testimony aforesaid was offered, and it is too late to raise the question for the first time on appeal. Louisiana Oil Corp. v. Davis, 172 Miss. 126, 134, 158 So. 792.
Reversed and remanded.