Board of Education of the City of St. Louis ex rel. Johnson Heat Regulating Co. v. United States Fidelity & Guaranty Co.
| Decision Date | 02 July 1912 |
| Citation | 149 S.W. 46,166 Mo.App. 410 |
| Parties | BOARD OF EDUCATION OF THE CITY OF ST. LOUIS ex rel. JOHNSON HEAT REGULATING COMPANY, Respondent, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. George H. Williams Judge.
AFFIRMED.
Judgment affirmed.
Edw. C Kehr for appellant.
(1) The question involved in this case was fully considered and determined by this court in Board of Education ex rel. v Fidelity & Guaranty Co., 155 Mo.App. 109. (2) The distinction sought to be made by the respondent between the former case and this, is not supported by the evidence and is not good in law. It is clear that the relator, the Johnson Heat Regulating Company, is not a subcontractor under Kohlbry and DeLaney, copartners doing business as the National Engineering & Construction Company; and it is equally clear that a surety is bound only for the acts of his principal, and cannot be held for the acts of a volunteer undertaking to carry out the contract of the principal, nor for the acts of the principal's successor in business, if he should undertake to transfer the business. As the evidence in this case establishes beyond cavil that the Johnson Heat Regulating Company is not a subcontractor under Kohlbry and DeLaney, it follows that the plaintiff cannot recover. (3) Where a party becomes a surety for costs in the case of A. v. B., he is not held as surety after C. is substituted as plaintiff in the place of A. Ex parte James, 59 Mo. 280. A surety for one is not after he takes a partner, liable for their joint debts. Mallory v. Brent, 75 Mo.App. 473. The contract into which the surety has entered cannot be varied without his consent; and if it is so varied, he will be discharged. Schuster v. Weiss, 114 Mo. 158; Burley v. Hitt, 54 Mo.App. 272; Higgins v. Harvester Co., 181 Mo. 300. It cannot be claimed that when the appellant became surety for Kohlbry and DeLaney, it contemplated that it was also becoming surety for the Advance Engineering & Construction Company, a corporation not then in existence and in no wise connected with the contract between the board of education and Kohlbry and DeLaney. "No one has the right of action on an agreement except those who are in the minds of the parties as the beneficiaries of its provisions." State ex rel. v. Loomis, 88 Mo.App. 506; Howsman v. Water Co., 119 Mo. 304; State v. Railroad, 125 Mo. 617.
S. C. Rogers for respondent.
(1) This case is identical and practically a companion case to that of Board of Education ex rel. v. Fidelity & Guaranty Co., 155 Mo.App. 109. It is also determined by the following cases: Lime & Cement Co. v. Wind, 86 Mo.App. 163; State ex rel. v. Mfg. Co., 149 Mo. 212; Brick & Terra Cotta Co. v. Hull, 49 Mo.App. 433; Board of Education v. Wood, 77 Mo. 197; Devers v. Howard, 144 Mo. 671; Bruce v. Berg, 8 Mo.App. 204; Martin v. Whites & Cox, 128 Mo.App. 125; Forge Co. v. Mfg. Co., 105 Mo.App. 484; Kirkwood v. Byrne, 146 Mo.App. 481; School Dist. v. Beggs, 147 Mo.App. 186; Henry Co. v. Salmon, 201 Mo. 162. (2) Instructions given for relator are correct and even if not, there is no dispute as to facts, the case being merely a question of law and error in instruction is not grounds for a reversal. McQuillin's Instructions to Juries, sec. 8, p. 6; sec. 302, pp. 239-40-41; sec. 304, pp. 241-42-43; Bowman & Co. v. Lickey, 86 Mo.App. 63. (3) It was not necessary to make Kohlbry & DeLaney and the Advance Company a party to this action, the contract being joint and several. Sec. 2769, R. S. 1909; Manny v. Surety Co., 103 Mo.App. 716.
--We have in this case the same contract and bond which were before us in the case of the Board of Education ex rel. Phillip Carey Co. v. United States Fidelity & Guaranty Co., 155 Mo.App. 109, 134 S.W. 18, hereafter referred to for brevity as the Carey case. In the case at bar, as in the Carey case, a partnership composed of Kohlbry and DeLaney, doing business under the firm name of the National Engineering & Construction Co., and hereafter referred to as the original contractors, entered into a contract with the Board of Education of the city of St. Louis, "to construct, erect and build heating and ventilating plants in the Baden School" in that city. For the performance of that contract the contractors gave a bond to the board of education, the Fidelity & Guaranty Company, appellant here, defendant below, being the surety. The bond and contract were executed March 12, 1907, the bond being given under and in accordance with sections 6761, 6762, Revised Statutes, 1899, that being the law in force at the date of the execution of it and of the contract. Among the other conditions in the bond is the condition that the principals "shall make payment to the parties furnishing the same for all materials used in the work, provided for in the said contract and specifications hereunto annexed, . . . whether by subcontract or otherwise." The contract makes the usual provision allowing the board of education to retain from the moneys due and coming to the contractors enough to pay and satisfy the claims of artisans, laborers and all those employed by or furnishing material to the contractors, not however rendering the board of education liable for the payment of wages and material in case the contractor failed to make payment. As in the Carey case, the condition covered by this provision is not here present. There is also the usual condition authorizing the commissioner of the board to have the work completed on failure of the contractors and to charge the cost therefor against them, the surety of course then being liable.
Shortly after entering into the contract and giving the bond, it appears that the partnership of Kohlbry & DeLaney was dissolved and went out of business, and a corporation called The Advance Engineering & Construction Co., was formed, originally by Kohlbry and two others and into which company DeLaney afterwards entered. Under date of the 18th of March, 1907, the relator here entered into a contract in writing with this Advance Engineering & Construction Co., to place what is called the "Johnson system of temperature regulation" in the Baden school, the installation of this heat regulating apparatus of relator being one of the three systems it was provided in the contract between the original contractors and the school board should be installed. This contract is signed in the name of the Advance Company by Kohlbry as its president. A few months after entering into this contract with the Advance Company, the Johnson Company commenced the installation of these appliances, completing the installation about the 1st of January, 1908. The work of installation of this plant was done under the inspection of the representative of the board of education and was accepted as in all respects satisfactory. The board of education, however, not recognizing the Johnson Heat Regulating Company in the matter, nor anyone but the original contractors, made payments to the original contractors, Kohlbry & DeLaney, under their firm name of National Engineering & Construction Co., the checks by which the payments were made being indorsed over in the name of the National Engineering & Construction Co., by Kohlbry to the Advance Engineering & Construction Co., and turned over indorsed by Kohlbry as president of the Advance Engineering & Construction Co., to the Johnson Heat Regulating Company. The contract price for the installation of this temperature regulation system was $ 1875. The amount paid on account of this contract to the Johnson Heat Regulating Company totalled $ 967.46, leaving a balance unpaid of $ 907.54. It was for this amount, with interest and costs that this action was instituted in the name of the board of education at the relation and to the use of the Johnson Heat Regulating Company.
So far it will be seen by reference to the Carey case, the bond and the contract and the doing of the work by others than the original contractors, the facts in this case and those in the Carey case are parallel, save as to names and nature of the work. Here the parallel ends. In the Carey case there was no evidence tending to show any privity of contract between the original contractors and the relator there. In the case before us, there are facts in evidence which it is claimed do make the connection.
It appears that at a meeting of the Advance Engineering & Construction Co., held on the 2nd of May, 1907, the following motion was made and carried: "That all the business of the National Engineering & Construction Company be assumed by the Advance Engineering & Construction Company." It further appears that at that time Kohlbry was a stockholder and president of the Advance Company and that DeLaney had become a stockholder in it about that date, and that they had turned over to the Advance Company their interest in their late partnership for stock in that company. There is also evidence tending to show that at least from the time of the making of the contract between the Advance Engineering & Construction Company and the Johnson Heat Regulating Company before referred to, and following that contract, Kohlbry & DeLaney, the original contractors, under their firm name of National Engineering & Construction Company had recognized the Advance Company as having taken over the performance of at least that much of the original contract as covered the installation of the Johnson system in the Baden school. Checks for payments which were made on account of the work were made in the name of the National Company and indorsed in that name by Kohlbry and turned over to the Advance Company and by it to relator. It...
To continue reading
Request your trial