London & Lancashire Indemnity Co. v. State

Sloan, J., delivered the opinion of the Court. This is an appeal from the Superior Court of Baltimore on a judgment in favor of the appellee, the only exception being to the granting' of the appellee’s two prayers and to the rejection of the appellant’s five prayers. A contract was entered into by the State of Maryland, through the State Roads Commission, and the Patapsco Engineering and Contracting Company of Baltimore City, for the improvement by the latter of 1.31 miles of road in Montgomery County, near Washington, D. C. On the same day the contractor, as principal, gave its bond, with the appellant as surety, whereby it was stipulated that the contractor “shall well and truly pay all and every person furnishing material or performing labor in and about the construction of said roadway, all and every sum or sums of money due him, them or any of them, for such labor and materials for which the contractor is liable.” In pursuance of its contract, the contractor bought the sand and gravel from the Smoot Sand and Gravel Company, whose yard was at Washington, D. C., and in order to get the sand and gravel where it was required on the work, the contractor engaged E'rank R. Hammond to haul the same by his trucks and his employees from the Smoot yards to the road under contract, and there dump it at the places designated by the contractor’s foreman. Eor this service the contractor agreed to pay Hammond eighty cents per ton.

In addition to this, Hammond was also engaged to transport forms and material from point to point on the job, for which he was to receive $2.50 per hour. It is provided by chapter 121 of the Acts of 1910, now ³¹⁰ section 30, article 91, of the Code, that “in no case shall any bond be approved or accepted unless the obligators bind themselves therein to the payment of all just debts for labor and material incurred by the bidder in the construction and improvement of the road contracted for,” which was declared valid in Amer. Fidelity Co. v. State, 128 Md. 50 , wherein the right of a third party to recover for an indebtedness of a contractor for labor and materials furnished was sustained. The only question in this case is whether the hauling and trucking done by the appellee’s assignor was either labor or materials within the meaning of the statute. .The appellant relies upon the construction usually made by the courts in mechanics’ lien cases, and contends that, because claims for hauling materials have generally been disallowed in such cases, the appellee’s claims here should have been disallowed.

The appellee argues that this is the view of this Court, and relies upon the case of State v. National Surety Company, 148 Md. 221 , wherein several mechanics’ lien cases were cited in support of the Court’s opinion. The cases there cited were applicable to the facts in that case, but there was no intimation that this Court, in a case such as is before us, would be limited to the construction placed on claims for mechanics’ liens. This Court has indicated in Amer. Fidelity Co. v. State, 135 Md. 335 , that claims for hauling do come within the statute.

In Amer. Surety Co. v. Lawrenceville Cement Co., 110 Fed. Rep. 719, expressly approved in Title Guaranty & Trust Co. v. Crane Co., 219 U. S. 24