Carr & Baal Co. v. Consolidated Independent Dist. of Bussey
Decision Date | 22 November 1919 |
Docket Number | 32736 |
Citation | 174 N.W. 780,187 Iowa 930 |
Parties | CARR & BAAL COMPANY, Appellant, v. CONSOLIDATED INDEPENDENT DISTRICT OF BUSSEY et al., Appellees |
Court | Iowa Supreme Court |
Appeal from Marion District Court.--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 mill work 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, for appellant.
Burrell & Devitt, Coffin & Rippey, and Theodore Mantz, for appellees.
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:
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 a sworn statement to the owner "before commencing work on the contract." The bond given by the contractor and surety company follows:
Thereafter and pursuant to agreement between the contractor, Knutson, the plaintiff furnished lumber and mill work 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 his hands. This action is brought to establish plaintiff's claim against funds alleged to be yet in the hands of the district, as provided by Code Section 3103, and to enforce payment by the Bonding Company of the balance of its account, on the theory that the original contract between the district and the contractor required the contractor to provide for the payment of materialmen, and that the Bonding Company had obligated itself to plaintiff in such sums as should be found due and unpaid, after exhausting the funds in the hands of the district. The trial court did establish and allow plaintiff's claim against the funds and in the amount that the court found was then in the hands of the district. Appellees contend that the bond is purely an indemnifying agreement; that the contract and specifications are not made a part of the bond; that the bond merely agrees to indemnify the School District against loss. Appellees say that, though appellant does not directly state that the building...
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