Berger Mfg. Co. v. Lloyd

• Decision Date: 26 February 1908
• Citation: 108 S.W. 52,209 Mo. 681
• Parties: BERGER MFG. CO. v. LLOYD et al.
• Court: Missouri Supreme Court

108 S.W. 52

209 Mo. 681

BERGER MFG. CO. v. LLOYD et al.

Supreme Court of Missouri, Division No. 1.

February 26, 1908.

BONDS — CONSTRUCTION.

Under the bond of a building contractor, conditioned that he should "make payment to all parties furnishing material used in the work," he, having paid a subcontractor for work and material, is not liable to one who sold the material to, but was not paid therefor by, the subcontractor.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by the Berger Manufacturing Company against Hiram Lloyd and others. From a judgment for plaintiff, defendants appealed to the Court of Appeals, which handed down an opinion reversing the judgment, and on the dissent of a judge thereof the case is certified to the Supreme Court. Judgment of circuit court reversed.

This suit was instituted in the circuit court of the city of St. Louis by the plaintiff against the defendants as the principal and sureties on a bond executed by them to the board of education of that city, conditioned that Hiram Lloyd, the principal, would faithfully perform a building contract therein mentioned according to all the terms thereof, and should make payment to all parties furnishing materials used in the work provided for in said contract and specifications thereto annexed, including any alterations and additions that might be made, and for all labor performed on said work, whether by subcontract or otherwise, then said obligation should be void; otherwise, the same should remain in full force and virtue. For a breach of said bond the plaintiff states that the said defendant, Hiram Lloyd, did enter into a contract with the Quernheim Sheet Metal Works Company, whereby the said Quernheim Sheet Metal Works Company agreed to furnish all the sheet metal work required under the provisions of the aforesaid contract, and that pursuant to said contract and between the 11th day of March, 1902, and the 27th day of March, 1902, inclusive, the said Quernheim Sheet Metal Works Company did purchase and receive from this plaintiff 12,430 pounds of No. 24 gauge galvanized iron at $3.99 per 100 pounds, amounting to $495.96, and also 105 pounds of half and half solder at 17 cents per pound, amounting to $17.85, and amounting in all to $513.81, for which it failed to pay plaintiff; that the said Hiram Lloyd used said material in the construction of said schoolhouse under the provisions of the said first-mentioned contract. Plaintiff then states that it requested payment of said amount from defendant Hiram Lloyd, and payment was refused; that it was familiar with the terms of the contract entered into between defendant Lloyd and the board of education, and that it relied on the provisions of the contract and bond as security for the payment of the material furnished by it; and prays judgment for the penalty of the bond $52.128.50, and that its damages be assessed at $513.81 and costs. The answer of defendants consisted of: (1) A general denial. (2) The second defense alleged that the contract and bond were executed as alleged in the petition; that the Quernheim Sheet Metal Works Company did agree with defendant Hiram Lloyd to furnish the sheet metal work for the Emerson School; that said company did furnish it to defendant Hiram Lloyd; and that said Lloyd paid Quernheim Sheet Metal Works Company all he had agreed to pay for the material furnished by that company. Then followed the general allegation: "Defendants further say that defendant Hiram Lloyd did erect, construct, and build said schoolhouse, and did furnish at his own cost and expense all material used in the construction of the said Emerson School, and did pay the wages of all artisans and laborers and all those employed by or furnishing material to said ...