“The mere fact that a party denied liability or defends a claim against him, or even the existence of a bona fide dispute as to the amount of the indebtedness, does not preclude recovery of interest.”
How later courts described this case
- “The mere fact that a party denied liability or defends a claim against him, or even the existence of a bona fide dispute as to the amount of the indebtedness, does not preclude recovery of interest.”
- construing the Prompt Payment Act, which governs public contracts
Written by the judges who cited it.
The opinion
JOHN E. PARRISH, Presiding Judge,
concurring in part and dissenting in part.
I concur in all parts of the principal opinion other than in the disposition of Point Five. As stated in City of Independence for Use of Briggs v. Kerr Const. Paving Co., Inc., 957 S.W.2d 315, 319 (Mo. App. 1997), and referred to in the principal opinion, “[A]s a general rule, a surety’s liability for contract damages is coextensive with that of the principal.” In my opinion, that rule of law requires the judgment that was entered against the contractor in this case to also be entered against the surety. I suggest that the provision providing that the obligation of the surety would be “null and void if the contractor promptly makes payment directly or indirectly, for all sums due,” simply affords the surety the right to secure a release or releases from any part of the judgment that is satisfied by the contractor. Failure to enter a judgment against the surety invites further litigation in the event the contractor fails to pay the damages that were assessed against it.
I would reverse the part of the judgment that purports to impose liability on the surety “to the extent that [Contractor] is unable to satisfy this judgment,” and remand with directions that judgment for damages awarded against the contractor be jointly entered against the surety. In all other respects, I concur in the principal opinion.