Berger Manufacturing Company v. Lloyd

• Decision Date: 16 May 1905
• Citation: 91 S.W. 468,113 Mo.App. 205
• Parties: BERGER MANUFACTURING COMPANY, Respondent, v. LLOYD et al., Appellants
• Court: Missouri Court of Appeals

91 S.W. 468

113 Mo.App. 205

BERGER MANUFACTURING COMPANY, Respondent, v. LLOYD et al., Appellants

Court of Appeals of Missouri, St. Louis

May 16, 1905

Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.

REVERSED.

Judgment reversed.

Henry A. Hamilton for appellants.

(1) A contract between two parties upon a valid consideration may be enforced by a third party, when entered into for the benefit of such third party, even though he may not be mentioned in the contract, and though he was not privy to the consideration. Rogers v. Gosnell, 58 Mo. 590; State ex rel. v. Gaslight Co., 102 Mo. 482, 14 S.W 974, 15 S.W. 383; Ellis v. Harrison, 104 Mo. 270, 16 S.W. 198; City to use v. Von Phul, 133 Mo. 561, 34 S.W. 843; Devers v. Howard, 144 Mo. 671, 46 S.W 625; School District v. Livers, 147 Mo. 580, 49 S.W. 507; Bethany v. Howard, 149 Mo. 504, 51 S.W. 94; Lime & Cement Co. v. Wind, 86 Mo.App. 163. (2) No one has a right of action on an agreement except those who are in the minds of the parties as beneficiaries of its provisions, and it must be determined from the language employed in the instrument what parties were intended as beneficiaries by the parties to the agreement. State ex rel. v. Loomis, 88 Mo.App. 500; Howsman v. Water Co., 119 Mo. 304, 25 S.W. 200; State v. Railroad, 125 Mo. 596, 28 S.W. 1074; Porter v. Woods, 138 Mo. 539, 39 S.W. 794; Ins. Co. v. Water Co., 42 Mo.App. 118. (3) The contract and bond involved in the case at bar must be construed together, and the obligation of the sureties on the bond should not be enlarged beyond what is warranted by a fair and reasonable construction of its terms. Sexton v. Anderson, 95 Mo. 373, 8 S.W. 564; Houck v. Frisbee, 66 Mo.App. 16; Bauer v. Cabanne, 105 Mo. 110, 16 S.W. 521; Cochrane v. Stewart, 63 Mo. 424; Earth v. Allen, 55 Mo.App. 107; Bricken v. Stone, 47 Mo.App. 530. (4) The privilege of argument by counsel is established by precedent and guaranteed by constitutional law. Counsel is recognized as constituting an element in judicial investigations; his right of argument to the jury cannot be denied. Proffat on Jury Trials, sec. 248, (Ed. 1877); Weeks on Attorney at Law, (2 Ed.), 240; Reagan v. Transit Co., 180 Mo. 117, 79 S.W. 435.

R. M. Nichols for respondent.

(1) Plaintiff, materialman of the subcontractor the Quernheim Company, is embraced with the meaning of the bond, both in its literal interpretation and under repeated decision. The clause of the bond under interpretation follows: "Shall make payment to the parties furnishing same for all material used in the work, . . . and for all labor performed on such work, whether by sub-contract or otherwise." Lime & Cement Co. v. Wind, 86 Mo.App. 163; State ex rel. v. Loomis, 88 Mo. App, 500; Forge Co. v. Cullen & Stock, 105 Mo.App. 484, 79 S.W. 1024; City of St. Louis, etc., v. Von Phul, 133 Mo. 565, 34 S.W. 843; Devers v. Howard, 144 Mo. 671, 46 S.W. 625; School District v. Livers, 147 Mo. 581, 49 S.W. 507; Bethany v. Howard, 149 Mo. 504, 51 S.W. 94; Crone v. Stinde, 156 Mo. 263, 55 S.W. 863, 56 S.W. 907; Lime & Cement Co v. Citizens Bank, 158 Mo. 273, 59 S.W. 109. (2) The testimony of the defendant in the case under the pleadings was sufficient to warrant a verdict for the plaintiff. There was no disputed fact to go to the jury for discussion, and the court was right in directing counsel that there was nothing to argue. 1 Thompson on Trials, 703, 721; Neidig v. Cole, 13 Neb. 39; 2 Encyclopedia of P. & P., 700; Houck v. Gue, 30 Neb. 113; Douglas v. Hill, 29 Kan. 528; Dixon v. Burke, 25 Ga. 226; Dunkard v. Railroad, 34 Md. 197; Trice v. Railroad, 35 Mo. 416.

GOODE, J. Judge Nortoni concurs in this opinion. BLAND, P. J., dissenting.

OPINION

GOODE, J.--

The Berger Manufacturing Company (plaintiff) sold to Quernheim Sheet Metal Works Company some galvanized iron and solder out of which the Quernheim Company manufactured the guttering, spouting and other sheet metal articles which were needed in the construction of the Ralph Waldo Emerson School Building in the city of St. Louis. Hiram Lloyd had the contract with the St. Louis Board of Education to erect that schoolhouse. He made a contract with the Quernheim Company to furnish him the guttering and other sheet metal articles he would need in constructing the house according to the contract. The testimony of William H. Quernheim, President of the Quernheim Company was that said company purchased from the plaintiff (Berger Manufacturing Co.) 12,430 pounds of galvanized iron at $ 3.99 a hundred pounds and 105 pounds of solder at 17 cents a pound, making a total of $ 513.81. These materials were delivered by the Berger Company at the Quernheim Company's shops and made by the latter company into gutters, spouts and hot-air pipes. The manufactured articles were delivered by the Quernheim Company to Hiram Lloyd at the Ralph Waldo Emerson School Building and were accepted and fully paid for by Lloyd. It seems the Quernheim Company put the spouting on the building. The contract between Lloyd and the board of education for the erection of the schoolhouse, after setting out the nature of the work to be done and the other details of the contract, and providing how Lloyd should be paid in different installments and that he should be paid the last installment four months after the acceptance of the building by the board of education, contains this clause:

"Provided that the wages of artisans and laborers, and all those employed by or furnishing materials to the said party of the second part, shall have been paid and satisfied; and in case the said party of the second part shall fail so to pay and satisfy all and every claim and demand against said building as aforesaid, the said party of the first part may, if it deems proper so to do, retain from the moneys due and coming to said party of the second part enough to pay and satisfy such claims and demands, and therewith pay such claims, it being, however, understood that nothing herein contained shall in any way be construed as impairing the right of said party of the first part to hold the said party of the second part, or his sureties liable on their bond for any breach of the conditions of the same."

The bond in suit was given by Lloyd for the faithful performance of his contract. The paragraph we have quoted from the contract shows the intention of the board of education was to require Lloyd to pay the wages of artisans and laborers who worked on the building and all persons employed by or furnishing material "to the party of the second part;" that is, to Lloyd. Lloyd had nothing to do with the Berger Manufacturing Company and it furnished him no material. He made a contract with the Quernheim Company to furnish guttering and spouting for the building and paid said company for those articles when they were delivered or afterwards. The Quernheim Company bought but never paid for the materials out of which it manufactured said articles. In my judgment the Berger Company did not furnish any material to Lloyd within the meaning of the contract and, hence, has no right of action on the bond given to secure faithful performance of the contract. I therefore favor a reversal of the judgment. Judge Nortoni concurs in this opinion and the judgment of the court below is accordingly reversed.

DISSENT BY: BLAND

DISSENTING OPINION BY BLAND, P. J.

BLAND P. J. (dissenting).--

On July 9, 1901, defendant Lloyd entered into a written contract with the board of education of the city of St. Louis, whereby in consideration of the sum of $ 104,250 to be paid, he agreed to erect and complete at his own cost, a public school building, in the city of St. Louis, known as the Ralph Waldo Emerson School. On the same date and at the same time, the contract was executed, Lloyd, as principal, and the other defendants, as sureties, executed and delivered to the said board of education the following bond:

"Know all men by these presents, that the undersigned Hiram Lloyd of the city of St. Louis, as principal, and John W. Reinhardt, Hy. F. Kiel and G. A. Gruner, of the city of St. Louis, as sureties, are held and firmly bound unto the board of education of the city of St. Louis in the sum of fifty-two thousand one hundred and twenty-eight and 50-100 dollars ($ 52,128.50) lawful money of the United States of America, well and truly to be paid to the said the board of education of the city of St. Louis, for which payment well and truly to be made, we bind ourselves, and each of us by himself, our and each of our heirs, executors and administrators, firmly by these presents.

"Signed, sealed and dated at the city of St. Louis this ninth day of July, A. D., 1901.

"The condition of the above obligation is such: That whereas the said Hiram Lloyd has on the day of the date of these presents executed and entered into a certain contract for the performance of certain work and furnishing of certain materials in the contract described, which said contract is hereto annexed:

"Now if the said Hiram Lloyd shall well and truly perform and fulfill all and every, the covenants, conditions, stipulations and agreements in said contract mentioned as agreed to be performed and fulfilled by him, and if the said Hiram Lloyd shall well and truly make all such alterations and additions in said work as may hereafter be ordered by the commissioner directing said work, or be thereafter contracted for or agreed upon. under the terms of the contract hereto annexed.

"And if the said Hiram Lloyd shall repay to the said the board of education of the city of St. Louis all sums of money which it may pay to other persons on account of work and labor done or materials furnished, which said Hiram Lloyd may fail to do or furnish, and shall pay to the said board of...