Thos. J. Dyer Co. v. Bishop International Engineering Co.

Thos. J. Dyer Co. v. Bishop International Engineering Co.

Opinion

 [*656]  Appellee, The Thos. J., Dyer Company, a subcontractor on the project hereinafter referred to, brought this action against the appellant, Bishop International Engineering Company, hereinafter referred to as Engineering Company, the general contractor, to recover the sum of $ 134,684.53 for materials and labor furnished by it in the construction of the project. The appellant, General Insurance Company of America, was also made a defendant as surety on the 'Owner's Protective Bond,' executed by the Engineering Company as principal.

The following facts were stipulated by the parties. Appellee is an Ohio corporation engaged in the plumbing contracting business. The Engineering Company is a partnership engaged in the general contracting business. On or about August 19, 1958, the Engineering Company entered into a written contract with The [**2]  Kentucky Jockey Club, Inc., hereinafter referred to as the Jockey Club, by the terms of which it agreed to provide labor and materials required in connection with the construction of a portion of a Horse Racing Plant, known as Latonia Race Track, upon premises belonging to the Jockey Club, situated in Boone County, Kentucky. That portion of the construction project covered by the contract was described as 'Phase One.'

On or about April 27, 1959, the appellee entered into a written subcontract with the Engineering Company, by the provisions of which it agreed to provide materials for and to install certain plumbing and utilities required in connection with the completion of the construction work to be performed by the Engineering Company, pursuant to its contract with the Jockey Club, for which it was to receive the sum of $ 115,000.00. Paragraph 3 of this subcontract reads as follows:

'3. The total price to be paid to Subcontractor shall be $ 109 Dollars ($ 115,000.00) lawful money of the United States, no part of which shall be due until five (5) days after Owner shall have paid Contractor therefor, provided however, that not more than ………. per cent (90%) thereof shall [**3]  be due until thirty-five (35) days after the entire work to be performed and completed under said contract shall have been completed to the satisfaction of Owners, and provided further that Contractor may retain sufficient moneys to fully pay and discharge any and all liens, stop-notices, attachments, garnishments and executions. Nothing herein is to be construed as preventing Contractor  [*657]  from paying to the Subcontractor all or any part of said price at any time hereafter as an advance or otherwise.'

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.