Arkansas Road Construction Co. v. Evans

Hart, J. (after stating the facts). In Oliver Construction Co. v. Williams, 152 Ark. 414, it was held that our statute providing that a contractor’s bond given thereunder for the faithful performance of public work shall inure to the benefit of those furnishing labor and materials, and that an action may be maintained by one of such persons to recover for labor' performed or materials furnished in the fulfillment of the contract. To the same effect see United States Gypsum Co. v. Gleason (Wis.) 17 L. R. A. (N. S.) p. 906; Knight & Jillson Co. v. Castle (Ind.) 27 L. R. A. (N. S.) p. 573 and case note, and National Surety Co. v. Hall-Miller Decorating Co. (Miss.) 46 L. R. A. (N. S.) p. 325. In the last mentioned case, in discussing the reason for the statute providing for the execution of such a bond by the contractor, in the case of public works, the court said: “Taking it as a cold-blooded business proposition, this clause in the bond would naturally encourage subcontractors of the best sort to take contracts to do certain parts of the work; it would tend to prevent the abandonment of the work by mechanics not promptly paid their wages by the contractors, who might be suspected to be of doubtful financial solvency; it would procure the best work and material and the prompt services of all workers and subcontractors; and all of this would redound to the benefit of the public. It must be borne in mind that the mechanics, materialmen, and laborers could have no lien upon the building, and that the trustees, representing the State, would not be bound to reserve money with which to pay their claims; but they would have to depend upon the contractor alone. Taking these things into consideration, the bond, in a way, supplied the place of the mechanics’ lien law, and thus gave an additional security to all persons working upon this building and supplying material therefor; and this alone was, in our opinion, of the highest importance to the State.” These principles of law control the present case, and under our statute the Arkansas Road Construction Company, the principal contractor, would be liable to laborers who performed work on the road for subcontractors. It is next insisted by counsel for appellants that the judgment must be reversed because the laborers to whom the subcontractors issued the certificates of - indebtedness were not made parties to the action. While the statute referred to above makes the principal contractor liable for all labor performed and materials furnished on a public improvement, the subcontractor’s certificate of the amount due by him to a laborer cannot be said to be an account stated in favor of the laborer against the principal contractor. St. L. I. M. & S. R. Co. v. Camden Bank, 47 Ark. 541. The certificates of indebtedness do not bind the principal contractor and are therefore not assignable so as to permit the assignee to bring action upon them without the assignor being a party. It is well settled, however, in this State that a defect of parties is waived unless objection to the complaint on that account is raised in the court below, either hy answer or by special demurrer for that purpose. It can not, therefore, be raised for the first time in this court. Murphy v. Myar, 95 Ark. 32; Crawford County Bank v. Baker, 95 Ark. 438; Love v. Cahn, 93 Ark. 215; and Spear Mining Co. v. Shinn, 93 Ark. 346, and cases cited. It is true that the answer in the present case alleges as a defense that the claims were not assignable. But no objection was made that there was a defect of parties, or that the complaint should be dismissed because the assignors of the claims were not joined as plaintiffs. The case was tried below on the merits and the principal ground of defense was that the principal contractor was not liable under the statute for labor done on the road by the servants of the subcontractor. Therefore the objection that there was a defect of parties comes too late here. It follows that the judgment must be affirmed.