Rester v. Moody & Stewart , 172 La. 510 ( 1931 )

ODOM, J.

■Moody & , Stewart entered into a contract with the state, through the highway commission, to build a portion of a public highway in the parish of Washington, designated as “State Project 412-D,” and gave bond to secure the faithful performance of the work with the Union Indemnity Company as surety. The contract was made and the bond written in accordance with Act No. 224 of 1918, as amended by Act No. 271 of 1926.

The contractors bound and obligated them-selves to construct and complete the road and to “furnish and deliver all material and do and perform all labor necessary for the satisfactory completion of the proposed improvement.”

The bond provided that the principal and the surety “are held and firmly bound in solido to the State of Louisiana and unto all subcontractors, workmen, laborers, mechanics and furnishers of materials and supplies,” the condition of the bond being such that if the said contractors “shall well and truly perform and construct * * * and shall pay all sums due on materials and supplies used and for wages earned by laborers and workmen employed upon the work to be done * * * and shall do and perform all the labor and work and shall furnish all material as specified in said contract in strict accordance with all the terms of said contract and the plans and specifications thereto attached and made part thereof * * * then this obligation shall be null and void; otherwise, to remain in full force and effect.”

The contractors used motortrucks of their own with which to haul gravel and other material used in the construction of the road, and during the progress of the work employed plaintiff to repair the trucks. In making the repairs, plaintiff furnished labor and used material such as casings, inner tubes, bolts, bearings, rivets, springs, a universal joint, a drive shaft, a brake drum, and a used motor, all amounting in value to $154.46.

The contractors failed to pay plaintiff’s bill, and he brought this suit in Washington parish, where the work was done, against the contractors and the surety for the amount of the bill, praying for judgment against them in solido.

Both defendants were cited and served. The contractors made no appearance and judgment went against them by default. But the surety company excepted to the jurisdiction of the court fatione personas on the ground that its Louisiana domicile was in the parish of Orleans, and that therefore it could not be sued in the parish of Washington.

This exception was overruled. The surety company then excepted to plaintiff’s petition on the ground that it set out no cause and no right of action, which exception was also overruled. The surety' then filed answer in which it set up the special defense that a surety on public contractor’s bond conditioned as required by Act No. 224 of 1918, as amended by Act No. 271 of 1926, is not liable for debts due by its principal for labor done and supplies furnished and used in repairing machines made use of by the contractor in constructing the work. The lower court gave judgment against the surety, and it appealed to the Court of Appeal (130 So. 254) which affirmed the judgment. The surety applied for a writ of review, which was granted, and the record is before us in obedience thereto.

On Exception to the Jurisdiction.

The contractors, Moody & Stewart, compose a partnership which has its domicile in the state of Mississippi. But it came to Washington parish and there entered into a contract to build a road in that parish, and when this suit was filed the partnership was in that parish, where the suit was brought, and service was made on J. O. Stewart, one of its members. The suit was properly brought against the partnership in Washington parish. Paragraph 4, § 1, Act No. 179 of 1918; paragraph 5, art. 165, Code of Practice.

The Louisiana domicile of the surety on the bond is in the parish of Orleans, but it entered into this contract of suretyship in the parish of Washington, where its principal had engaged to build the road. Its principal being suable in that parish on this cause of action, it was suable there also, under the express provisions of section 8, Act No. 41 of 1894, which reads as follows: “Sec. 8. Be it enacted, ete. No company having signed such bond or bonds shall be permitted to deny its corporate power to execute said instrument, or incur such liability in any proceeding to enforce liability against it thereunder and such company shall be suable in the same jurisdiction as the principal obligee [meaning obligor] on such bond, and citation shall be served on it, or its attorney for service of process, as is' by law in such cases provided.”

The exception to the jurisdiction was properly overruled.