U. S. Fidelity & Guaranty Co. v. D'Angelo

PROVO STY, J. The plaintiff company being surety on a bond given by a building contractor under the provisions of Act 221, p. 418, of 1914, and suits having been brought against it on the bond by materialmen who furnished materials to the contractor, has instituted the present suit against the mate-rialmen, the contractor, and the owner of the building so that they and the plaintiff may litigate in this one suit their respective rights. Allegation is made that the said owner violated both the building contract and the suretyship contract, and thereby has made himself liable to the materialmen for their claims, and to the petitioner for whatever amount the petitioner may in this suit be held to be liable for to the materialmen; and judgment is asked against him for whatever amount the xffaintiff may be condemned to pay to the materialmen; that said owner is still owing the contractor a balance which should go towards paying the mate-rialmen ; that the amount of one of the partial payments due to the contractor was deposited in the hands of the.petitioner, and that petitioner has the right to deposit that amount in court and be relieved of all further responsibility. The owner filed an exception of no cause of action. This exception was sustained, and the suit was dismissed as to the owner. The owner is not claiming anything of anybody, and nobody is claiming anything of him, except that plaintiff is claiming that by the violation of the building and suretyship contracts, he has made himself liable to the materialmen for their claims, and to itself for whatever it may have to pay to the ma-terialmen. [1] This alleged liability to the material-men cannot exist, for the reason that this owner has furnished the bond which under the said Act 221 of 1914 relieves him of all liability to the materialmen. The only possible liability of this owner must therefore be to plaintiff. It-is said to have arisen from the violation of the building and suretyship contracts, and the violation of the contracts is said to have consisted in that the owner' required work to be done which was not within the contract, and later took the work out of the hands of the contractor when the building was but partially finished. [2] The suretyship contract was a contract in favor of the owner. Hence the violation of it by this owner could not give rise to a cause of action against the owner. The building contract was one between the owner and the contractor. The violation of it could not give rise to a cause of action in favor of the surety. The debts to the materialmen are due by the contractor. The payment of them could not give rise to a cause of action against the owner, who does not owe them. Much, was said in argument touching the form of the action; in other words, as to the right of the plaintiff to bring the suit by way, or as part, of a concurso. But the exception of no cause of action does not raise any issue as to form; it addresses itself exclusively to the liability vel non of the defendant to the plaintiff. Judgment affirmed. O’NIELL, J., dissents. DAWKINS, J., takes no part.