Baker & Co. v. Bryan

• Decision Date: 22 October 1884
• Citation: 21 N.W. 83,64 Iowa 561
• Parties: BAKER & CO. ET AL. v. BRYAN ET AL.; WRIGHT & IVES v. THE SAME
• Court: Iowa Supreme Court

21 N.W. 83

64 Iowa 561

BAKER & CO. ET AL. v. BRYAN ET AL.;

WRIGHT & IVES v. THE SAME

Supreme Court of Iowa, Dubuque

October 22, 1884

Appeals from Story District Court.

ACTIONS at law upon a bond executed to secure the performance by defendants of a contract to build a school-house. There was a judgment upon a verdict for plaintiffs in each case, from which defendants appeal. The facts of the cases appear in the opinion.

AFFIRMED.

F. D Thompson and Dyer & Fitchpatrick, for appellants.

George A. Underwood, for appellees.

OPINION

BECK, J.

I.

The facts involved in each of these cases being substantially the same, and the questions of law involved in each being identical, they were argued and submitted together, and will be considered and decided in the same manner.

The defendant, Bryan, entered into a contract with the independent district of Ames for the building of a school-house. The defendant became bound by the contract to complete the building and deliver it to the school district on a certain day, "free from liens or claims of every kind." The contract provides that fifteen per centum of the price agreed upon shall be reserved, to be paid upon the completion of the house, after defendant "shall have produced receipts for all labor and materials used thereon."

To secure the performance of this contract, Bryan, with the other defendants as sureties, executed a bond to the school district, which, after reciting the fact that the contract had been entered into, contains an obligation in the following language:

"Now therefore, if the said Solon Bryan shall well and truly perform all of his several agreements and stipulations contained in said contract literally, and according to the full intent and meaning thereof, and pay all damages caused by his failure so to do, and shall pay all claims for material, labor, etc., used in the construction of said building, and produce proper receipts therefor, and in every manner and form abide by and fulfill his said contract, then this obligation to be void, otherwise to be and remain in full force and effect."

The plaintiffs in the respective actions severally furnished, under contracts with Bryan, material used in erecting and completing the building, which has not been paid for by Bryan, and no receipts therefor, or other evidence showing payments, were produced to the school district or its board of directors. These actions are brought upon the bond to recover the amounts due the respective plaintiffs, severally, upon their claims for materials furnished for the school-house, as above indicated. The contract, bond, and facts first stated, are set out in the petitions of plaintiffs. The defenses, under which the objections urged by defendants to the judgment are made, are sufficiently pleaded in the answer. We will proceed to the consideration of these objections, which are expressed in the following points, quoted from the argument of defendants' counsel:

"1. The bond in question is a statutory bond, with conditions prescribed by law.

"2. No intent can be presumed outside the requirements of the statute.

"3. Neither the contract nor bond shows upon its face that the plaintiff was intended to be secured thereby.

"4. Should such intent be inferred from the language of the instruments, the district had no authority of law to contract for the benefit of third parties, and such provisions, if expressed in a contract, would be void.

"5. That the provisions in the contract and bond, claimed to have been intended for the benefit of the plaintiffs, relate only to the reserve fund of fifteen per cent, which was never paid to Bryan."

The objections thus presented were raised in the court below by motion to strike parts of the petition, by objections to evidence, by requests for instructions to the jury, and by motion in arrest of judgment.

II. The first and second of the points presented in the foregoing quotations from counsel's argument may be admitted, for the purposes of the case, with the exception that the conditions of the bond are not prescribed by statute. It may, therefore, be conceded that the instrument sued upon is a statutory bond, and that its provisions must conform with the intent of the statute.

Code, § 1723, provides that school-houses erected at a cost exceeding $ 300 shall be built under contract with the lowest responsible bidder, "and bonds with sufficient sureties for the faithful performance of the contract shall be required." Under this statute, the bond in this case was required by the school board, and was executed by defendants. Its conditions, however, are not prescribed by law, further than that they shall be such as shall secure "the faithful performance of the contract." While the conditions of the bond are not specifically prescribed, the statute clearly contemplates such as shall, in the judgment of the parties, attain the end of securing the due performance of all of the covenants of the contract.

III. We are of the opinion that the contract and bond, considered separately and together, show that all persons furnishing labor or materials to be used in the construction of the school-house were intended to be secured by the bond. The contract provides that the building should be delivered to the school district "free from liens or claims of every kind," and that fifteen per centum of the price should be reserved for payment upon the completion of the work, and the production of receipts for the payment on account of all labor or material. While it is true that no lien can be enforced against a school-house, (Charnock v. The Dist Tp. of Colfax, 51 Iowa 70, 50 N.W. 286,) and that no claim could be enforced against the school district, it is evident that the parties intended to impose upon the contractor an obligation to pay for all labor and materials used in the construction of the building. The fact that...