Opinion
4 Div. 353.
October 5, 1937. Rehearing Denied November 2, 1937. Reversed and Rendered March 22, 1938. Rehearing Denied April 5, 1938. Reversed and Remanded on Mandate November 1, 1938.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
Action by the Joe F. Walters Construction Company, Inc., against the John E. Ballenger Construction Company and another. Judgment for plaintiff, and defendants appeal.
Affirmed.
Certiorari granted by Supreme Court in Ballenger Const. Co. v. Walters Const. Co., 236 Ala. 546, 184 So. 273.
Further certiorari granted in 236 Ala. 548, 184 So. 275.
"Count 1 of the complaint, as amended, claims the sum of $748.34, 'for the breach of the condition of that certain bond, made by the defendant John E. Ballenger Construction Company, a corporation, as principal, together with the defendant, National Surety Corporation, a corporation, as surety, in the year 1933 or 1934 and prior to the supplying to the defendant, John E. Ballenger Construction Company, a corporation, by plaintiff of the labor, material, feed stuff, or supplies, as hereinafter stated, said bond being conditioned and in accordance with Section 1397 (30) of the Alabama Highway Code of Alabama; and plaintiff avers that the condition of the said bond has been broken by the defendants in this: that the plaintiff did during the year 1934 supply and furnish to the defendant, John E. Ballenger Construction Company, a corporation, labor, material, feed stuffs, or supplies, of the value of $748.34, in the execution of the work provided for in that certain contract made by the defendant, John E. Ballenger Construction Company, a corporation, with the State of Alabama, for which said bond was executed for the faithful performance thereof and as conditioned and in compliance with section 1397 (30) of the Alabama Highway Code of Alabama, and that the defendant, John E. Ballenger Construction Company, a corporation, the principal on said bond has failed and refused to make payment to plaintiff for said labor, material, feed stuff, or supplies, and said sum of money remains due and unpaid to plaintiff, although the defendant, John E. Ballenger Construction Company, a corporation, as the principal on said bond, and the contractor with the State of Alabama, has made final settlement with the State of Alabama on said contract, and has duly received notice and proof of plaintiff's said claim.
"That said labor, material, feed stuff or supplies, hereinabove referred to, supplied and furnished to defendant Construction Company by plaintiff, as aforesaid, consisted of the use or rental by defendant Construction Company from plaintiff of plaintiff's certain Lorain shovel during the months of July, August, September, October and November, 1934, on defendant Construction Company's project in Pike County, Alabama, and that said sum herein sued for is the balance due plaintiff by defendant Construction Company for said use or rental of said shovel.
"Count 2 is, in material respects, the same as Count 1, except that it claims the sum of $24.78, it being alleged that plaintiff did during the year 1934 supply and furnish to the defendant Construction Company labor, material, feed stuffs or supplies of the value of $24.78, which, it is alleged, 'consisted of 110 ft. of 3/4 inch cable at the price and of the value of $24.78.' "
George T. Garrett and Ball Ball, all of Montgomery, for appellants.
The bill of exceptions is complete. It was certified by the clerk to be complete, and was approved by the trial judge as being complete. Supplemental certificate by the clerk shows that there was no exhibit attached to the certified copy of the bond sued on. Supplemental certificate and affidavits to such effect tend to sustain and not to contradict the bill of exceptions. No recovery can be had upon a highway contractor's bond except for labor, materials, feed stuff and supplies and a claim for breach of an agreement to use a mechanical shovel does not warrant recovery on such a bond. Gen. Acts 1927, p. 356; U.S. Fidelity Guaranty Co. v. First Nat. Bank, 224 Ala. 375, 140 So. 755; U.S. Fidelity Guaranty Co. v. Yielding Bros. Co., 225 Ala. 307, 143 So. 176; Illinois Surety Co. v. John Davis Co., 244 U.S. 376, 37 S.Ct. 614, 61 L.Ed. 1206. Failure to prove that suit on contractor's bond was begun within sixty days after complete performance of contract makes judgment for plaintiff error. Consolidated Indemnity Ins. Co. v. Texas Co., 224 Ala. 349, 140 So. 566.
Walters Walters, of Troy, for appellee.
Where the bill of exceptions recites that it contains all of the evidence, and the bill of exceptions as contained in the transcript affirmatively shows that it does not contain all of the evidence, the appellate court may assume that the omitted evidence was sufficient upon which to base the verdict of the trial court. Appellants cannot correct but are bound by the bill of exceptions. Byrd v. Aetna Life Ins. Co., 231 Ala. 458, 165 So. 110; Patton v. Endowment Dept. of A. F. A. M., 232 Ala. 236, 167 So. 323; Dancy v. Ratliff, 201 Ala. 162, 77 So. 688; Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Continental Gin Co. v. Milbrat, 10 Ala. App. 315, 65 So. 424; Sovereign Camp v. Screws, 218 Ala. 599, 119 So. 644; National Pyrites Copper Co. v. Williams, 206 Ala. 4, 89 So. 291; Prinz v. Weber, 126 Ala. 146, 28 So. 10; Street v. Shaddix, 197 Ala. 446, 73 So. 73; De Leon v. Walters, 163 Ala. 499, 59 So. 934, 19 Ann.Cas. 914; Federal Intermediate Credit Bank v. Faulk, 228 Ala. 621, 154 So. 606. Rental of the shovel, under the circumstances shown, constitutes materials or supplies, and failure to employ the shovel by the defendant does not release it and the surety from paying for its rental. State v. Southern Surety Co., 221 Ala. 113, 127 So. 805, 70 A.L.R. 296; Butler Lumber Co. v. United States, 73 Ct. Cl. 270, 302-306; 40 U.S.C.A. § 270, Anno. 1936, p. 33, Note 4; U.S. Fidelity Guaranty Co. v. Benson Hardware Co., 222 Ala. 429, 132 So. 622; Union Indemnity Co. v. State, 217 Ala. 35, 114 So. 415. The sixty-day limitation applies only to the surety by statute, and judgment could be affirmed as to principal and reversed as to surety. But the proof showed compliance with the sixty-day provision. Ala. Code 1928, § 1397 (30) E; Union Indemnity Co. v. Ricks, 224 Ala. 514, 140 So. 597.
This case was tried before the court, sitting without a jury. Upon the appeal, the only errors assigned are as to the rendition of judgment in favor of appellee.
In such situation, unless the bill of exceptions sent up here affirmatively shows that it contains all the evidence which was before the lower court on the trial, "we would not be justified in reversing the trial court in rendering judgment for [plaintiff], appellee." Patton v. Endowment Department of A. F. A. M. of Alabama, 232 Ala. 236, 167 So. 323, 324.
And "we look strictly to the bill of exceptions and its proper exhibits for the evidence on the trial." Byrd v. Ætna Life Ins. Co., Ala.App., 165 So. 109, 110; certiorari denied Id., 231 Ala. 458, 165 So. 110. We could not, if we would, Code 1923, § 7318, "undertake the doubtful and dangerous task of correcting the record [bill of exceptions] after the fashion proposed by defendants, appellant. Appellants are bound by the terms of the bills of exceptions they bring here." Sovereign Camp W. O. W. v. Screws, 218 Ala. 599, 119 So. 644, 646.
The suit, here, was upon a contractor's bond given by appellant John E. Ballenger Construction Company, a corporation, with National Surety Corporation, a corporation, as surety, under the terms of that part of the act of the Legislature of Alabama approved August 23, 1927, "The Alabama Highway Code," Gen. Acts Ala. 1927, p. 348, § 28, now codified as section 1397 (30) of Alabama Code of 1928, by the Michie Company.
In the bill of exceptions we find this: "The plaintiff then introduced a certified copy of the bond entered into * * * marked plaintiff's exhibit 'C' which was in words and figures as follows." Then succeeds, in the bill of exceptions, a copy of the bond, which, among other things, carries these recitals: "Provided, however, that the condition of this obligation is such that whereas the above bound John E. Ballenger Construction Company have this day entered into a contract with the said State of Alabama, for the building of 7.385 miles of road in Pike County, to-wit: On State Highway No. 15 U.S. Route No. * * * known as U.S. Public Works Project No. NRH 35, NRS 35, NRS 41 between Troy and Elba, a copy of which said contract is hereto attached." (Italics ours.) And also the following: "A copy of the Proposal, Specifications and the Contract hereinbefore referred to is attached and made a part of this obligation, and this instrument is to be construed in connection therewith."
Looking, as we must, Byrd v. Ætna Life Ins. Co., supra, "strictly to the bill of exceptions and its proper exhibits for the evidence on the trial," all the affidavits, supplemental "certificates," and "letters from counsel," filed in this court after the taking of the appeal, to the contrary notwithstanding, Sovereign Camp, W. O. W., v. Screws, supra, we do not see how it can be doubted that the "Contract," "Proposal (and), Specifications" referred to in the bond were introduced into the evidence. They were a part of the bond which was introduced. And the natural, and inescapable meaning of the language quoted (by us, from the copy of the bond in the bill of exceptions) is that they were introduced.
Though the bill of exceptions recites that it "contains all of the evidence introduced on the trial of the * * * cause," yet we nowhere find the copy of the "Contract, Proposals, or Specifications" referred to.
In this state of the record we would not, as above noted, be justified in reversing the trial court in rendering judgment for plaintiff, appellee. Patton v. Endowment Department of A. F. A. M. of Alabama, supra.
Said judgment is, accordingly, affirmed.
Affirmed.
Opinion After Remandment.
Upon the original submission of this cause in this court, we thought the judgment should be affirmed as to each appellant for the reason set forth in our opinion then handed down, and which appears.
But that reason lost its potency by virtue of the decision by the Supreme Court on petition for certiorari reversing our judgment, and remanding the cause to this court for further consideration. Code 1923, § 7318.
Hence we now proceed to consider the appeal upon its merits.
As mentioned in the opinion by the Supreme Court, 184 So. 273, "the suit was for certain alleged items of labor, material, feedstuff, and supplies sold to a road contractor, and counted on the surety bond, with the surety as a defendant."
The bond being given in accordance with the provisions of that part of the Act of the Legislature of Alabama approved August 23 rd 1927, Gen. Acts Alabama 1927 p. 348, now codified as section 1397 (30) of Michie's Code of 1928, operated to obligate the surety, pertinently here, to pay appellee only for " labor, material, feedstuffs, or supplies, [used] in the execution of the work provided for in such contract." (Italics ours.)
If it be said that count 1 of the complaint was not subject to the demurrers interposed thereto, U.S. Fidelity Guaranty Co. v. Yeilding Bros. Co. Dept. Stores, 225 Ala. 307, 143 So. 176, yet we think, and hold, the judgment against appellants based thereon cannot be sustained because of the facts admitted in the case.
Appellee, plaintiff below, claimed, and offered testimony supporting its claim, that appellant Ballenger Construction Company (to so designate the contractor) rented from it a certain shovel to move all a certain described lot of "sand clay top soil." It admits that it was paid in full for all of the said "sand clay top soil" which it actually moved.
But it is suing here, it admits, not for anything it did for appellant contractor; but for the amount it claims it would have made from moving the "sand clay top soil" it did not move. In other words, while the work was in progress, appellant contractor stopped appellee's shovel; and this suit, as we see it, is plainly for damages which appellee claims it suffered by reason of said appellant's breach of its contract (claimed by appellee) to let appellee's shovel move all the said "sand clay top soil." Such an item, we think, and hold, is not covered by the bond hereinabove referred to. It afforded ample basis for a suit by appellee against the contractor; but a joint suit against the contractor and the surety must fail.
We have examined the authorities cited by appellee's industrious and resourceful counsel, but do not think any of them militate against the conclusion we have reached.
Probably there would be no legal obstacle to the recovery based upon count 2 of the complaint; but, as it is distinctly held by our Supreme Court Consolidated Indemnity Ins. Co. v. Texas Co., 224 Ala. 349, 140 So. 566, 568, that in a suit (such as the present with only the addition of the principal, here) on a road contractor's bond "the burden was [is] therefore upon plaintiff [appellee, here] to allege and prove that the suit was begun 'within sixty days after the complete performance of said contract and final settlement thereof.' " (Italics and parenthetical phrase supplied by us.)
We find an entire absence of proof that the instant suit was so begun; and, for this reason, if for no other, the judgment — based as it is upon counts 1 and 2, only, of the complaint — rendered cannot stand.
It is accordingly reversed, and a judgment here, and hereby, rendered in favor of appellants. Code 1928, §§ 9498, 9502.
Reversed and rendered.
Reversed and remanded on authority of John E. Ballenger Const. Co. v. Joe F. Walters Const. Co., 236 Ala. 548, 184 So. 275.