(concurring and dissenting):
I.
I concur in the court’s opinion insofar as it relates to rental payments for the steel sheet pilings.
Stanhope makes much of the fact that in 1968 § 43-2 of Virginia’s mechanics’ lien laws was amended to include the reasonable rental or use value of equipment. It infers from this amendment that the rental value of such equipment was not within the. meaning of materials furnished under earlier mechanics’ lien laws and that the General Assembly’s failure to amend § 11-23 indicates a legislative intention to provide greater coverage under the general mechanics’ lien laws than for those supplying rental equipment on public projects.
The reasoning is too speculative. The 1968 amendment was adopted following a routine review of Virginia’s mechanics’ lien statutes. There had been no definitive construction of § 43-2 before the amendment, and the amendment simply may have been the result of an abundance of caution and a wish to make it explicitly clear that rental payments for rental equipment supplied were included.
On the other hand, there is nothing to indicate that the General Assembly ever intended to provide greater protection for materialmen and subcontractors on private construction projects than that furnished to such suppliers on public projects. The court’s quotation from Thomas Somerville Co. v. Broyhill strongly suggests a legislative intention to equate materialmen and subcontractors on public projects with the statutory protections afforded such suppliers on private projects. The statement by the Supreme Court of Virginia that § 11-23 is remedial and must be given a liberal construction convinces me that whatever doubts may arise from the adoption in 1968 of the amendment to § 43-2 should be resolved in favor of a construction of § 11-23 so as to include the rental value of rental equipment furnished within the meaning of “materials.”
II.
I cannot agree with the court, however, that the steel sheet piling itself is within the term “materials,” as used in § 11-23. It was not expendable equipment. It was a capital item. Clearly it was intended that it be used again and again on job after job. Had it had sufficient need for such sheet piling, Lockwood might have purchased it, but surely if it failed to pay the purchase price of such capital equipment, the general contractor on the project on which it was first used would not be obligated to pay to the seller the full purchase price. If it had been used on more than one project, neither the general contractor on the first, the second or third project would be liable for the purchase price.
Lockwood probably had only occasional need of such equipment, preferring, therefore, to lease it. Its obligation to return leased equipment, like its obligation to pay the purchase price of capital equipment purchased, is not the kind of thing which a payment bond underwrites.
A contractor who leases capital equipment, a dragline, for instance, has a duty to return it to the lessor in accordance with the terms of the lease. So does a conditional vendee of similar equipment have a duty to return it to the conditional vendor if he does not maintain his payments. Either may make an unlawful disposition of the equipment, in which event he subjects himself to possible criminal charges and to personal liability to the lessor or conditional vendor. In neither event, however, could an owner or general contractor upon whose work the dragline had been used be held responsible for the unlawful conduct of the lessee or conditional vendee in failing to return the dragline in accordance with his contractual obligations, unless the one *996sought to be charged was a participant in the unlawful disposition, but that has nothing to do with payment bond statutes or mechanics’ liens which provide payment protection for labor, for materials incorporated in the work, and for other materials reasonably expended during the course of the work. Though these statutes may protect a remote supplier of capital equipment for rental payments accruing during the course of the work, they do not require either the owner or the general contractor to insure the remote supplier against any unlawful disposition by the subcontractor of the capital equipment.
If a payment bond had been required of Lockwood, it would have furnished Roanoke with protection for accruing rental payments, but not for the ultimate return of the piling, for the return of capital items is simply not within the contemplation of any of these statutes.
I do not read New Amsterdam Casualty Co. v. Moretreneh Corp., 184 Va. 318, 35 S.E.2d 74, as requiring a different result. There the court was not concerned with the interpretation of a statute. The contract document had been specifically incorporated in the bond, and the bond was construed as a guarantee of the contractor’s performance of everything undertaken under the contract documents. The general contractor had explicitly undertaken to lease the pumping equipment from Moretreneh and to return it unless a purchase option was exercised, and that had not occurred.
In Moretreneh the court noted: “ * * * The terms of bonds and contracts of this type are so variant that one case can rarely be accurately said to be an apt and controlling authority for another.” Its construction of the expressed provisions in the bond and the contract documents there is not suggestive to me of its answer to the very different question which arises when we are called upon to construe § 11-23 of the Virginia Code.
III.
For these reasons, I join in the affirmance insofar as Roanoke’s claim is founded upon unreceived rental payments. I dissent insofar as that claim is founded upon the value of the unreturned sheet piling.