Madison Lumber Co. v. Crane Service Co.

ON REHEARING JANVIER, J. The only question now before us is whether the surety on the bond of a general contractor engaged in carrying out a contract for public work is liable to a furnisher of lumber sold to a subcontractor to be used in the repair of a pile driver belonging to and used by the subcontractor, where tile repairs were made necessary not by ordinary wear and' tear, but by the negligent operation of the pile driver. In our original opinion we said that un *366 der the authorities therein cited such material as was required to make repairs made necessary by ordinary use of the pile driver, if not paid for by the subcontractor, might form the basis of a suit against the surety of the general contractor. Since we were then of the opinion that the items which we are now considering had been (purchased to make such repairs, we held that the surety of the general contractor was liable therefor. Our attention has, however, been called to the fact that the repairs made were not necessitated by ordinary use, or by wear and tear, but were required because of the fact that the pile driver, through carelessness of the employes of the subcontractor, was allowed to turn over, with the result that it sustained the damage which the lumber was used to repair. If the surety of the general contractor is liable for such purchases, it might be liable for the purchase of an entire pile driver or for the purchase of any other equipment damaged or destroyed by the negligence of the subcontractor or his employes. Such a result was certainly never contemplated by the framers of Act 271 of 1926. A subcontractor who undertakes work must furnish his own tools and equipment and, under that act, the liability of the surety of the general contractor is limited to materials and supplies used in the work or used in the machines and equipment. We cannot extend the meaning of that act so as to include within its provisions purchases made for the replacement of parts damaged or destroyed by negligence. Our original decree is, therefore, recalled, and it is now ordered, adjudged and decreed that the judgment of the First City Court of New Orleans be and it is annulled, avoided and reversed, and that there now be judgment in favor of Fidelity & Deposit Company of Maryland, dismissing plaintiff’s suit insofar as it applies to the said defendant, at the cost of plaintiff.