Royce Kershaw, Inc. v. State Ex Rel. Day

Cook, J., delivered the opinion of the court. This suit was instituted against a highway contractor and his surety by subcontractors, and persons who furnished materials, supplies, and labor in the construction of a highway. The suit was brought under provisions of article 6, chapter 151, “Contracts for Public Works,” Code 1930, sections 5971 to 5976, inclusive. The declaration alleged, and the pleadings throughout admit, that the state highway commission had made final settlement with the contractor, but that no notice of such final settlement had been published, as provided by section 5973, Code 1930. This being true, the cause is ruled by the case of United States Fidelity & Guaranty Co. v. Plumbing Wholesale Co. (Miss.), 16 So. 529, wherein it was held that, after final settlement of a public contract, no cause of action accrues against the surety on the contractor’s bond until publication of notice of such final settlement. Consequently, the judgment of the court below will be reversed, and the cause dismissed without prejudice to any rights of appellees that may accrue upon publication of notice of final settlement of the contract. Reversed and dismissed.