Cabool School Dist. v. United States F. & G. Co.
| Citation | 9 S.W.2d 103 |
| Decision Date | 20 July 1928 |
| Docket Number | No. 4339.,4339. |
| Court | Court of Appeal of Missouri (US) |
| Parties | CABOOL SCHOOL DIST. v. UNITED STATES FIDELITY & GUARANTY CO. |
Appeal from Circuit Court, Laclede County; W. E. Barton, Judge.
Action by the Cabool School District, at the relation and to the use of Thomas Fogarty and another, partners doing business under the firm name of the Sanitary Plumbing & Heating Company, against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Mann & Mann and O. T. Hamlin, all of Springfield, Hiett, Lamar & Covert, of Houston, and L. C. Mayfield, of Lebanon, for appellant.
John P. McCammon, of Springfield, for respondent.
This is an action by a subcontractor on a surety bond given by the original contractor, who had the contract to erect a high school building. The cause was tried before the court and a jury. Plaintiff recovered a judgment for $1,500, and defendant appealed.
Petition was filed in Texas county, but the venue was changed to Laclede county. May 1, 1918, the Cabool school district made a contract with H. W. Mann, by which contract Mann agreed, for the consideration of $13,730.70, to furnish the material and labor and erect a school building according to certain plans and specifications. To secure the performance of the contract, etc., Mann gave bond in defendant company to the school district; said bond being in the sum of the contract price. Mann sublet to relators the contract for installing the plumbing and heating system, said relators to furnish material and labor. The contract price for the plumbing and heating system was $3,333. Relators were unable to collect from Mann, and seek recovery on the bond given to the school district. The amount demanded is $2,988.87.
After preliminary allegations the petition alleged that the school district on May 1, 1918, made a contract with Mann, by which Mann agreed for the consideration of $13,730.70 to furnish material and labor and erect a high school building according to certain plans and specifications and to the satisfaction of the architect acting for the school district; that to secure the faithful performance of the contract Mann, as principal, and defendant, as surety, on May 21, 1918, executed the bond sued on. A true copy of the bond was attached to the petition.
Relators further alleged that, relying upon the bond, they submitted to Mann bids to furnish labor and material and install the plumbing and heating system in said school building; that their bids were accepted, and that they were given the contract at the price of $3,333 to furnish labor and material and install the plumbing and heating system; that they installed the plumbing and heating system in accordance with their contract, and in accordance with the plans and specifications of the architect; that the work done by relators was approved by the architect and accepted by the school district, and that the plumbing and heating system installed by relators has since its installation been in use by the school district; that after allowing all just credits and setoffs there is due relators the sum of $2,988.87; that relators recovered a judgment against Mann for the sum here demanded, but that Mann is insolvent and they are unable to collect. And further it is alleged:
"That said Mann has not fulfilled his said contract, and has not paid for material used by relators and entering into the construction of said high school building, nor for the labor of relators in putting in the same, nor for providing and installing the said heating system and other work therein, and by reason thereof the said bond executed by said contractor and by defendant has been breached, and the relators have been thereby damaged in the sum of $2,988.87, with interest from February 1, 1919, at 6 per cent. per annum."
The answer, among other things not necessary to mention, pleads (1) that the plumbing and heating system was not installed according to plans and specifications; (2) that the plumbing and heating system, as installed by relators, was worthless and of no value; (3) that because of the defective condition of the heating system the school district, in order to continue its school, was required to spend the sum of $1,250 repairing and changing the plumbing and heating system; (4) that on account of the defective heating system installed by relators the school district over a period of five years spent $1,000 more for coal than would have been necessary, had the heating system been installed according to plans and specifications; (5) that over a period of five years said school district paid its teachers $1,000 for time when school was not in session because of the defective heating system; (6) that the plumbing was defective and worthless, and was condemned by the state high school inspector; (7) that the water pressure tank was not in accordance with the plans and specifications, and that because thereof the school district was compelled to install another at a cost of $150; (8) that relator Fogarty and one Fred Platte had executed a bond to defendant to indemnify it against loss or liability on the bond sued on; (9) that the alleged partnership had been dissolved, and that plaintiff O'Hara had no interest in the cause; and (10) that whatever cause of action relators may have had was barred by the five-year statute of limitations. A reply put in issue the new matter set up in the answer.
Learned counsel for defendant, in their brief and written argument, state that relators' evidence "tended to sustain the allegations" of the petition. Such being conceded, it will not be necessary to state the evidence, except as it may apply to the particular assignments.
Relators at first proceeded on the theory that the bond here sued on was not such as is required by section 1040, R. S. 1919, and that, such being the case, they had recourse personally against the directors of the school district; and on this theory suit was filed against the directors. That cause reached this court, and we held that the bond was in substantial compliance with the statute, and the relators must resort to the bond for redress. See Fogarty et al. v. Davis et al., 240 S. W. 888. We deemed our ruling in conflict with a ruling by the Kansas City Court of Appeals and certified the cause to the Supreme Court. The Supreme Court supported our conclusion. Fogarty et al. v....
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