Carr & Baal Co. v. Consol. Independent Dist. of Bussey
| Decision Date | 22 November 1919 |
| Docket Number | No. 32736.,32736. |
| Citation | 174 N.W. 780,187 Iowa 930 |
| Parties | CARR & BAAL CO. v. CONSOLIDATED INDEPENDENT DIST. OF BUSSEY ET AL. (DES MOINES SHEET METAL CO., INTERVENER). |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Marion County; J. H. Applegate, Judge.
Action by plaintiff, manufacturers and jobbers of mill work at Des Moines, Iowa, against the Consolidated Independent District of Bussey, Iowa, and Oskar Knutson, contractor, and the Chicago Bonding & Surety Company, to recover the value of millwork furnished by it and used in the construction of a consolidated school building by Knutson, at Bussey, Iowa. The trial court found that plaintiff was not entitled to the relief asked, but was entitled to receive from the school district the balance on the contract price of the school building, left in the hands of the district; that the school district was not liable to plaintiff upon a certain $600 warrant; that plaintiff was not entitled to relief against the school district on account of the alleged changes in the building made under the direction of the architect, who, under the terms of the contract, was the final arbiter. The court further found that the plaintiff is not entitled to recover in any sum against the Chicago Bonding & Surety Company; that the bond given by the surety company to the school district was not made for the benefit of subcontractors, and does not contain any promise or agreement to pay their claims, and does not cover the claim that the plaintiff has against the contractor, Knutson, upon items of material furnished to the contractor, Knutson, for which it was not paid, and the claim of the plaintiff, Carr & Baal Company, against the Chicago Bonding & Surety Company is found to be without equity, and the same is dismissed upon its merits. The court made other findings as to other defendants, the contractor and intervener, which appear not to be material on this appeal. The plaintiff appeals. Affirmed.Roy E. Cubbage, of Des Moines, for appellant.
Burrell & Devitt, of Oskaloosa, for appellees Consolidated Independent Dist. of Bussey, Anderson, Sandiland, and Lowman.
Coffin & Rippey, of Des Moines, for appellee Chicago Bonding & Surety Co.
Theodore Mantz, of Des Moines, for appellee Des Moines Sheet Metal Co.
1. Counsel for appellant state that as the appeal will be presented, the sole issue is this: Is the defendant Chicago Bonding & Surety Company liable to the plaintiff for the value of building materials furnished by plaintiff to the contractor and used in the construction of the school building, by virtue of the bond furnished by said surety company to the school district? Errors are assigned by appellant, and they are that the trial court erred in holding that there was no privity between plaintiff and the bonding company; in holding that the bond was not given for the benefit of the plaintiff; in holding that there was no requirement of the bond or contract upon which plaintiff could base a claim for payment and in dismissing the petition. The material part of the contract between the contractor and the school district is as follows:
“This agreement * * * witnesseth: That the said party of the first part, for and in consideration of the payments to be made to and by the said second parties as hereinafter provided do hereby covenant, contract and agree to furnish all labor and materials necessary to finish and complete all the work of a two story and basement school building (excepting the plumbing and heating) otherwise all work and material according to the plans, specifications and drawings (which are declared to be a part of this agreement), made by Morrison & Thorne, architects (acting as agent for said owner), in a good substantial and workmanlike manner, to the satisfaction of and under the direction of the superintendent.
And said first party also do agree to find, provide and furnish all labor and materials of such kinds, qualities and descriptions, as shall be fit, proper and sufficient for completing and finishing all the work or works mentioned (provided that possession of the premises be given to the contractor), on or before June 15, 1915, and completing the building on or before October 15, 1915. Time to be extended only in case of general strike, alterations, fire or unusual action of elements.
And the second parties for and in consideration of the first party completely and faithfully executing the aforesaid work, and furnishing all the materials therefor, so as fully to carry out this contract, and the design, according to its true spirit, meaning and intent, and by and at the times mentioned, and to the full and complete satisfaction of Morrison & Thorne, superintendent, do we hereby agree to pay to said party the sum of fifteen thousand seven hundred and eighty-three ($15,783) dollars, lawful money of the United States on certificates of superintendent, from time to time, as the work progresses, to wit: 85% per cent. of the estimated value of the same, subjected to additions and reductions, as hereinafter provided, and the remainder on satisfactory completion and acceptance of the entire work, after the expiration of 20 days.
It is agreed by the parties that fifteen per cent. of the contract price shall be held by the owner as security for the faithful completion of the work, and may be applied, under the direction of the superintendent, in the liquidation of any damages under this contract; furnishing to the owner a release from any liens or right of lien, also a sworn statement, as required by law, before commencing work on this contract and hereby acknowledges receipt of notice to furnish same. * * *
In witness whereof the said parties have hereunto set their hands and seal the 4th day and year first above written.
+----------------------------+
¦Oskar Knutson. ¦[Seal.]¦
+--------------------+-------¦
¦J. Wilbur Anderson. ¦[Seal.]¦
+--------------------+-------¦
¦J. E. Sandiland. ¦[Seal.]¦
+----------------------------+
In presence of
J. Cample W. Morrison.”
It appears that a printed form of contract was used, and its blanks filled in. At the top of this form, the following appears in print:
Appellees contend that this has a bearing on the construction of the contract; that the form is one in use in other states and Canada, and evidently refers to some requirement in the laws of some place other than Iowa, that the contractor must furnish some kind of sworn statement to the owner “before commencing work on the contract.” The bond given by the contractor and surety company follows:
“Know all men by these presents: That we Oskar Knutson, of the city of Des Moines, and state of Iowa, as principal, and the Chicago Bonding and Surety Company, as surety, are held and firmly bound unto the independent school district of Bussey, Iowa, in the penal sum of forty-eight hundred dollars ($4,800), lawful money of the United States, well and truly to be paid to the said Independent School District of Bussey, Iowa.
The condition of the above obligation is such that whereas the above-named Oskar Knutson has this day entered into a contract with the above-mentioned independent school district for the erection of a public school in the said town of Bussey, Iowa: Now, therefore, if the said Oskar Knutson shall well and faithfully perform and keep all the conditions of said contract on his part to be kept and performed, and shall well and truly protect the interests of the said independent school district, then this bond to be void, otherwise to remain in full force and effect.
Witness our hands this 4th day of June, 1915. [Signed] Oskar Knutson. Chicago Bonding and Surety Co., by Fred S. Young, Attorney in Fact. [Corporate Seal.]”
[1] Thereafter, and pursuant to agreement between the contractor, Knutson, the plaintiff furnished lumber and millwork which was used in the construction of the school building, only a part of which has been paid. The contractor abandoned the work, and the district, under proper certificate of the architect, completed the building and charged the expense thereof against the funds in its hands. This action is brought...
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