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MISSISSIPPI STATE BUILDING COMMISSION v. S & S MOVING

AUGUST 28, 1985

MISSISSIPPI STATE BUILDING COMMISSION
v.
S & S MOVING, INC., MISS. HARDWARE CO., HOLLOWAY-HOUSTON, INC., AND LEWIS MILLER CONSTRUCTION CO.



BEFORE PATTERSON, C.J., HAWKINS & ANDERSON, JJ.

PATTERSON, CHIEF JUSTICE, FOR THE COURT:

This case arises from the attempted restoration of the Riverboat Sprague in Vicksburg. In 1973, when the Sprague was being used as a theater, Vicksburg citizens requested the Mississippi State Building Commission (hereinafter the Commission) to renovate the craft as an historical riverboat. While the project was in the planning stage, a fire destroyed the Sprague, leaving only a hull.

In a beached position, the boat filled with many tons of mud. The Corps of Engineers ordered the Commission to remove the boat because it was a hazard to navigation. Restoration of the Sprague remained the ultimate goal.

 The Commission first contracted with a Vicksburg firm, Patton-Tully Transportation Company, which attempted unsuccessfully to raise the Sprague. On April 16, 22 & 29, 1980, the Commission advertised for bids in The Clarion Ledger for the removal of the boat. At its July 10, meeting the Commission decided to enter into a contract with Achilles Construction Company of Memphis, Tennessee. Achilles was chosen over Patton-Tully because Achilles' proposal (1) required less time to complete; (2) was less expensive; and (3) contained a provision for bond.

 The Commission and Achilles entered into a contract providing in part that (1) no money was due Achilles until the bond had been furnished or Achilles had fully performed; (2) the Commission would bear costs of performance and payment bonds not to exceed the aggregate sum of $4,500.00.

 By letter dated July 17, 1980, the Commission authorized Achilles to proceed with the project. At this time Achilles had not furnished the Commission the performance bond required by the contract.

 The following October the Commission authorized payment to Achilles of $27,500.00 less ten percent retainage, or $24,650.00. At the time of this authorization Achilles had neither furnished a performance bond nor fully performed the contract. A second payment was approved on March 6, 1981, in the amount of $31,600.00. The Commission granted Achilles several extensions before terminating the contract in July 1981.

 At its meeting of November 12, 1981, the Commission approved several actions, including the following:

 (1) Cancelling the project because restoration was no longer financially feasible;

 (2) Releasing $2,750.00 in retainage held on previously terminated agreement with Achilles, with such sum to be paid to the court for determination of rightful recipient in view of conflicting assignments and suits made;

 (3) Cancelling the award for bond on Achilles Construction Co., because no bond was provided; and

 (4) Holding $50,000.00 in an account entitled" Vicksburg State Park Unallocated Account "for legal contingencies for subject project. As of this date, the Commission had received notice that Achilles had not paid its subcontractors. The record reveals a total of $713,806.82 was expended on the removal of the Sprague.

 On November 25, 1981, S & S Moving, Inc. (hereinafter S & S) filed suit in the Circuit Court of Warren County against Achilles and the Commission. S & S alleged it was" a subcontractor hired to furnish both labor and materials to Achilles and had the right to and did, in fact, rely upon the Laws of the State of Mississippi and the terms of said contract for receipt of its payment in the event Achilles did not pay. "It was further alleged the Commission had breached its contractual obligation to Achilles and the subcontractor relying thereon. S & S demanded judgment in the sum of $50,000.00 plus interest.

 Three additional subcontractors, the Lewis Miller Construction Co., Inc., Holloway-Houston, Inc., and Miss. Hardware Co. filed petitions to intervene in the cause, alleging they too had relied on the Commission to secure the ...


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