ON SUGGESTION OF ERROR. Suggestions of error have been filed on behalf of appellant and of certain appellees which have had the individual consideration of each of the judges of this division, and after such consideration, we have decided that they should be overruled.
On behalf of the appellant, it is earnestly insisted that it was error to allow attorney's fees, that neither the statute nor the bond provided for attorney's fees, and that the allowance of the fee was, therefore, error. In the consideration of the case on the former appeal, reported in 155 Miss. page 31, 119 So. 366, we held that: "When a bond is executed by a contractor in favor of the builder, which refers to a contract between the builder and the contractor, requiring the contractor to execute a bond for the faithful performance of the contract, and provides, in general terms, plans and specifications of the building to be erected and the bond, which reserved to the bonding company the right at its option to take over and finish the contract should the contractor fail, and other rights, such bond will be construed in connection with the contract referred to in the bond and made a part of the bond contract; and, where it is apparent from a consideration of the bond and the contract referred to that it was the intention of the bonding company, the builder, and the contractor to execute the bond required by section 3, chapter 128, Laws of 1918, it will be held to be such a bond."
Turning to the contract between the contractor and the owner, construed in connection with the bond, in article 30 of the contract, it is provided: "It shall be the obligation of every contractor and subcontractor estimating upon work under this contract operation to figure and to include within his bid to furnish a bond in the sum and *Page 223 conditioned as the law of the State of Mississippi requires, in a surety company satisfactory to the owner or architect; contractor likewise to pay the cost of any required recordation of contract and bond and the cost of any required cancellation of the same. He shall also secure and pay for lien and privilege certificates which will be required of him before final payment is made under this contract. The bond shall also secure the owner the faithful performance of the contract, in strict accordance with plans and specifications, it shall protect the owner against all liens or claims that may be filed against the building according to the laws of the state of Mississippi and shall provide for the payment of reasonable attorney's fees for the enforcement of the contract and the institution of concursus proceedings, if such proceedings become necessary."
Under the contract which the bond was given to secure, the attorney's fees were provided for expressly, and it must have been within the contemplation of the parties making the bond and the parties looking to it that the bond was given to displace the materialmen's liens given by the statute under sections 1 and 2. But it is said that there is no such proceeding in Mississippi as a concursus proceeding. The contract was drawn in Louisiana where concursus proceedings exist; and it is substantially an interpleader between all parties interested in such proceedings that they may all be brought in court at one time and all rights determined in one suit. The proceeding here is substantially in accord with a concursus proceeding in Louisiana, and there is no error in the allowance of the attorney's fees. The attorney's fees appear to be large considering the function of the attorney's bringing it; but the chancellor had the matter before him with proof, and is in better position to determine the reasonableness of the amount of fee than is this court. There is no substantial merit in the contention *Page 224 of the appellant in the suggestion of error. The last decision,132 So. 535, does not change the decision in 155 Miss. 31,119 So. 366. That opinion is referred to in the beginning of the last opinion, and the two are to be taken together. While parties have a constitutional right to make private contracts, and to embody in them such stipulations as they desire, yet the Legislature may provide rights, under law, for materialmen and laborers which private contracts cannot displace; and where the contractor gave the bond contemplated by the contract and thus secured the benefit of displacing the liens of the materialmen, he cannot dispense with the requirements of the statute under section 3 that the bond given shall secure the rights of the materialmen and laborers It was, of course, optional to give the bond or leave the statute in force, but, having given the bond, the statutory conditions must remain embraced in the bond, and, as stated before, the statute has the effect of writing the conditions in the bond therein provided. The suggestion of error on behalf of the appellant is overruled.
For the appellee Williamson-Greer Company it is suggested that we erred in holding that this company had waived its right under the bond. The provision of agreement relied upon, made upon the trial of the cause, to sustain this proposition reads as follows:
"That the said Williamson-Greer Company have received as security for their said claim a note of the Natchez Investment Company, Inc., for the amount of the claim, secured by a mortgage on the Eola Hotel and Levy Office Building at Natchez, Mississippi.
"That if it should be finally held in this cause by the court that the bond hereinabove referred to as having been executed by the Hartford Accident Indemnity Company as surety on the terms and conditions as shown by the pleadings in this cause was and is a bond guaranteeing *Page 225 the faithful performance on the part of the said J.V. R.T. Burkes, contractors, of their contract for the construction of said Eola Hotel Building under said project number 640, as alleged by the pleadings in this cause and same is still inforce then that the said Williamson-Greer Company is entitled to a judgment against the Hartford Accident Indemnity Company for the full amount herein sued for and demanded as hereinabove agreed and as alleged in the cross-bill of complaint filed by Williamson-Greer Company, but the Hartford Accident Indemnity Company does not agree that they are additionally liable for interest and attorney's fees to said Williamson-Greer Company, but the question of liability for interest and attorney's fees is left to the court as a matter of legal construction under the contract documents and bond; however, it is agreed that said Williamson-Greer Company has been required to come into this proceeding as a creditor for the enforcement and protection of their rights and that it has been necessary for them to employ attorneys, to-wit: Engle Laub of Natchez, Mississippi, and that they have thereby incurred reasonable attorney's fees for the services required and to be required in the prosecution of their claim to final judgment; and that such proceedings have become necessary by reason of the failure of the contractors, J.V. R.T. Burkes, to pay the amount of their indebtedness to the said Williamson-Greer Co."
The counsel for Williamson-Greer Company seem to give small attention to the part of the agreement "and same is still in force." The effect of the decision formerly rendered is that the Williamson-Greer Company waived its right, or was estopped to assert its right, on the bond by reason of having taken the obligations of the Natchez Investment Company secured by lien on the hotel building. A party cannot thus deal with the bond; he could look to the bond and demand payment for the *Page 226 material furnished under it, but he cannot violate the terms of the bond as to what the contractor was to receive in payment, or the materialmen, for the material furnished. The bond stipulated that the materialmen and contractor should be paid in money. This was an important provision for the protection of the surety on the contractor's bond. There is quite a difference in having money, which is accepted by all persons in satisfaction of all demands, and in taking a mere note and lien; and it is well known that for cash a better bargain can be secured than one on credit secured by note and lien. The Williamson-Greer Company took their security, and whether they intended to waive their right against the bond or not in doing so is not controlling. The question is: Did their conduct in so doing operate as a waiver and estoppel of their right to resort to the bond? The securities taken were not taken by the consent of the surety, and we think the Williamson-Greer Company waived its right to resort to the bond and that it must look to the security which they took apart from the bond.
Suggestion of error overruled.