Am. Sash & Door Co. v. Mcgregor

Decision Date09 November 1926
Docket NumberCase Number: 17347
Citation129 Okla. 261,1926 OK 867,264 P. 602
CourtOklahoma Supreme Court

¶0 1. Municipal Corporations -- Contractor's Statutory Bond--Liability for Labor and Material Furnished. Section 7486, C. O. S. 1921, requires the officers of a municipal subdivision when contracts are made for public buildings or other public improvements included in the scope of said statute to require the contractor to execute a bond to the state of Oklahoma. The bond required by this section of the statute must be conditioned to pay all indebtedness which the contractor may incur for labor and material. When such a bond is executed, the surety is liable as per the conditions thereof.

2. Same--Nonliability of Surety Where Bond not in Statutory Form. Where officers of a municipality fail to require a bond of a contractor conditioned as by section 7486, C. O. S. 1921, but do require a bond conditioned that the contractor shall faithfully perform said contract on his part according to the terms, covenants, and conditions thereof, and the public improvement is completed by the contractor to the satisfaction of the municipality, there is no breach in the conditions of said bond and the surety is not liable to a materialman for material furnished the contractor in completing the work. The terms and conditions of such bond cannot be extended by implication.

John F. Kerrigan and B. B. Foster, for plaintiff in error.

Montgomery & Montgomery and Campbell & Ray, for defendants in error.


¶1 The American Sash & Door Company, a corporation, sued A. L. McGregor and the New Amsterdam Casualty Company, a corporation. The plaintiff in the court below is the plaintiff in error here. The defendants in the court below are the defendants in error here. The plaintiff obtained a judgment against A. L. McGregor and he files no cross-petition in error. The judgment against him is therefore a finality. The judgment sought by the plaintiff against the New Amsterdam Casualty Company was denied, a demurrer having been sustained to the evidence of the plaintiff against the New Amsterdam Casualty Company and the cause of action pleaded as to it dismissed. From this action, the plaintiff appeals. It makes one assignment of error. That assignment is set forth in this language:

"The court erred in sustaining the demurrer of defendant surety (meaning the New Amsterdam Casualty Company--ours) to the evidence of plaintiff and in adjudging that plaintiff have no recovery on the bond against the surety."

¶2 The cause of action pleaded by the plaintiff against the defendant McGregor was this:

That McGregor was a contractor; that he entered into a contract with the board of education of school district No. 39 of Osage county to erect a school building; that the contract made with the said school board required that McGregor give a bond to the school district, the condition of which bond so given will be set out hereafter; that McGregor purchased from the plaintiff certain building appurtenances, to wit, doors and window sashes, or for which he never paid, and on this cause of action judgment was entered against the defendant McGregor in favor of the plaintiff. As against the defendant Casualty Company, the plaintiff tried its case in the district court on the theory that the bond given, by reason of the provisions of the contract of McGregor with the school district, was intended to be the statutory bond provided by section 7486, C. O. S. 1921, as to public buildings. The defendant casualty company, surety on the said contractor's bond, contended in the trial court, and contends here, that the bond required by the school board and the bond given was not the statutory bond provided by said section of the statute, but was an ordinary contractor's bond or builder's bond, and that if the building was erected to the satisfaction of the school district, the conditions of the bond were performed and not breached, and the plaintiff cannot hold it for material furnished the contractor.

¶3 The bond was in the sum of $ 28,325, which was the contract figure, and was conditioned as follows, to wit:

"Whereas, said principal has entered into a contract for the erection and completion of one-story brick school building, located in above mentioned district.
"Now, therefore, the condition of this obligation is such, that if the said principal shall faithfully perform said contract on his part, according to the terms, covenants and conditions thereof, * * * then this obligation shall be void, otherwise to remain in full force and effect."

¶4 There are certain other provisions contained in the bond as to what the obligee, to wit, the school district, was required to do as a condition precedent to its right of recovery upon the bond. These conditions do not appertain to the question here at issue. The plaintiff contends that the contract made by the defendant McGregor with the school district required that the contractor furnish all materials and labor, and impliedly required that he pay therefor, and that the bond, although running alone to the school district as obligee, should be held to inure to the benefit of the plaintiff as a materialman, and that while the plaintiff is not privy to the bond contract, the same being made solely to the district, under the authority of Lohr v. Johns-Manville Co., 77 Okla. 6, 185 P. 526, U.S. Fidelity & Guaranty Co. v. Cook, 105 Okla. 185, 231 P. 495, and Klein v. Beers, 95 Okla. 80, 218 P. 1087, the demurrer of the defendant casualty company should have been by the trial court overruled and judgment entered as against it in favor of the plaintiff for the amount found due the plaintiff by the defendant McGregor. In the cases cited, the suits were upon bonds...

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3 cases
  • N.Y. Cas. Co. of N.Y. v. Wallace & Tiernan, Inc.
    • United States
    • Oklahoma Supreme Court
    • January 22, 1935
    ... ... Bowman 32 Utah, 33, 88 P. 687; Hutchinson v. Krueger, 34 Okla. 23, 124 P. 591, and American Sash & Door Co. v. McGregor, 129 Okla. 261, 264 P. 602. We cannot agree with defendant that these cases ... ...
  • Elec. Supply Co. v. City of Muskogee
    • United States
    • Oklahoma Supreme Court
    • March 12, 1935
    ...its own operation puts it there by implication." ¶5 Following this decision, the Supreme Court of this state in American Sash & Door Co. v. McGregor, 129 Okla. 261, 264 P. 602, uses the following language:"Section 7486, C. O. S. 1921, makes it the duty of public officials who enter into a c......
  • American Sash & Door Co. v. McGregor
    • United States
    • Oklahoma Supreme Court
    • November 9, 1926

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