Appeal from a decree of the Circuit Court of the city of Norfolk. Hon. Clyde H. Jacob, judge presiding.
Present, All the Justices.
SMITH, J., delivered the opinion of the court.
This suit was instituted by Wiley N. Jackson Company, Incorporated, against the City of Norfolk seeking contribution for one half of the sums paid under a compromise settlement made by Jackson with certain land owners who claimed damages for injury to two buildings adjacent to certain construction work performed by Jackson. Jackson's surety, The Fidelity and Casualty Company of New York, which actually paid the settlement money, was made a party complainant by order of court and the suit proceeded in its and Jackson's names.
The cause was heard on the pleadings, exhibits and argument of counsel, the court dismissing the bill on the ground that the complainants, Jackson and Fidelity, were not entitled to contribution from the City. Thereafter this appeal was awarded complainants.
The pleadings and exhibits show that on July 15, 1949, a contract was entered into by the Commonwealth of Virginia, acting by and through the State Highway Commissioner, the City of Norfolk and the Norfolk and Western Railway, by which the parties agreed to undertake the construction of an underpass in the City and thereby eliminate a grade crossing of the Railway at Monticello Avenue, which at this point is part of State Highway No. 170.
This tri-party contract recites the motivating cause for the agreement and requires that each of the contracting parties perform some specific undertaking toward the completion of the project. The first provision of this agreement is in part as follows: "(1) That the construction of said 'Project' in accordance with said plans is hereby undertaken by said parties, each agreeing to pay one-third of the total cost thereof, including, among other things, cost of acquiring and clearing lands or rights of way and property damage incident to the construction of the 'Project' and costs of plans, engineering and supervision, * * *." Other undertakings of the parties pertinent to this suit are as follows:
"I. Undertakings of the State.
"(a) Let to contract and supervise the performance of all labor and the furnishing of all materials for such of the work shown on said plans as is included in Estimate A attached to and made a part hereof:
"(c) Require of its contractor or contractors its Standard Performance Bond and insurance of the ...