Farish v. Pacific Indemnity Co.

SPENCE, J. Plaintiff brought this action upon a bond executed by defendant DuPuy, as principal, and defendant Pacific Indemnity Company, as surety. The cause was tried by the court sitting without a jury and plaintiff recovered a judgment in the sum of $9,915.89. Defendants appeal from said judgment.

Defendant DuPuy had entered into a contract with the Joint Highway District No. 13 for the construction of a portion of the Broadway low level tunnel. The above-mention bond in the sum of $218,000 was executed pursuant to the requirements of the Public Works Act. (Deering’s Gen. Laws, Act 6423.) DuPuy subcontracted the grading and paving portion of the work to P. L. Burr. Burr subcontracted certain grading work to plaintiff, R. A. Farish, who in turn subcontracted to Tieslau Brothers the work of re[168]moving the dirt from the tunnel after the grading and piling by plaintiff. Tieslau Brothers rented the equipment for the removal of said dirt from A. J. MeCosker. The work covered by plaintiff’s original contract was completed and certain additional work was done by plaintiff, including further grading and the furnishing of equipment and men to DuPuy and Burr. The work under plaintiff’s original contract was done at an agreed total cost while the additional work was done upon an hourly basis. Plaintiff continued to perform the work and to furnish the equipment until October 15, 1937, when he was forced to quit because of his failure to receive the agreed payments.

Prior to the filing of this action upon the bond, plaintiff has received, either directly or indirectly through payments made to plaintiff’s subcontractors and men, the following amounts: (1) $1500 paid by Burr to plaintiff; (2) $2,000 paid by Burr to Tieslau Brothers, and (3) $6,140.31 paid by Burr to Parish’s employees, making a total of $9,640.31. Separate actions were filed upon the bond by each of the following: Burr, Farish, Tieslau Brothers and MeCosker. Tieslau Brothers included in their complaint the claim of MeCosker. Farish included in his complaint the claim of Tieslau Brothers. Burr included in his complaint the claim of Farish. These actions were tried at the same time with the exception of the action brought by Burr, in which last-mentioned action a jury trial had been demanded. Separate findings and judgments were entered, the judgments in favor of Tieslau Brothers and MeCosker aggregating the sum of $3,623.75. In this action the trial court found that the reasonable value of the materials and labor furnished by plaintiff and the renting and hiring of equipment by plaintiff for said work was the sum of $23,179.95, being the amount of $24,849.90 alleged in the complaint less certain items disallowed by the trial court. From the reasonable value so found, the trial court deducted the sum of $9,640.31, being the sum previously received by plaintiff, directly or indirectly as above set forth, and also the sum of $3,623.75, being the aggregate amount included in the judgments in favor of Tieslau Brothers and MeCosker. This left a balance of $9,-915.89, for which sum the judgment was entered in favor of plaintiff herein.