Austin v. Ransdell
| Decision Date | 02 May 1921 |
| Docket Number | No. 13935.,13935. |
| Citation | 207 Mo. App. 74,230 S.W. 334 |
| Parties | AUSTIN v. RANSDELL et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.
Action by Edwin A. Austin against Henry C. Ransdell and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.
R. H. Musser, of Plattsburg, for appellants.
John C. Landis, Jr., and Richard M. Duncan, both of St. Joseph, for respondent.
The school board of the Gower school district, in Clinton county, Mo., contracted with a firm of contractors composed of George W. Wright and George G. Wright, doing business under the name of George W. Wright & Son, for the erection of a high school building. The bond exacted of the contractors by the board was not "conditioned for the payment of material used in such work" as required by section 1040, R. S. 1919.
After erecting the building, Wright & Son failed to pay one Agard for materials alleged to have been sold to and used by said contractors in the erection of said building. Agard brought suit against the contractors and obtained a judgment for $808.70. Thereafter George W. Wright went into bankruptcy. Whether the other member of the firm is a bankrupt or is solvent does not appear. Nor does it appear whether anything could be realized on said judgment against the bankrupt estate of George W. Wright, or whether the son, the other member of the contracting firm, could be made to pay said judgment.
Thereafter Agard, according to plaintiff's claim, assigned said judgment to the plaintiff, and the latter brought this suit against the members of the school board based on their failure to perform the ministerial duty, required of them by said section 1040, of taking the proper bond.
A failure to perform the duty required by the aforesaid statute renders the members of the board, or at least those failing to perform their duty, liable in damages to one injured thereby. Burton Machinery Co. v. Ruth, 194 Mo. App. 194, 186 S. W. 737; Id., 196 Mo. App. 459, 194 S. W. 526.
In this case, however, there is no evidence binding upon defendants as to the amount of materials sold the contractors nor that such materials went into the building. The plaintiff introduced a certified copy of the judgment against Wright & Son, but the defendants were not parties to that proceeding and are not bound thereby. 15 R. C. L. 1006; Bigler v. McClure, 189 Mo. App. 710, 716, 175 S. W. 256; Hoerr v. Meihofer, 77 Minn. 228, 79 N. W. 964, 77 Am. St. Rep. 674. The letter written by Agard stating the amount of his claim and the failure of the president of the school board to deny or dispute the amount thereof cannot have the effect of rendering the plaintiff's claim an account stated as it would were the...
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George Weis Co. v. Dwyer
...against the contractor. Cases have made such an allegation or proof of such a fact a condition for recovery. See Austin v. Ransdell, 207 Mo.App. 74, 230 S.W. 334 (1921); Rupard Asphalt Co., Inc. v. O'Dell, supra. In Austin the school board members were the only defendants, the contractors w......
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Rupard Asphalt Co. v. O'Dell
...alleged that a judgment had been obtained against O'Dell, or that he was insolvent, bankrupt, or judgment proof. In Austin v. Ransdell, 207 Mo.App. 74, 230 S.W. 334, 335, in a similar situation we ' We think that, before these defendants can be held upon the cause of action herein sought to......