City of Bethany v. Howard

• Decision Date: 09 May 1899
• Citation: 149 Mo. 504,51 S.W. 94
• Parties: CITY OF BETHANY v. HOWARD et al.
• Court: Missouri Supreme Court

51 S.W. 94

149 Mo. 504

CITY OF BETHANY v. HOWARD et al.

Supreme Court of Missouri, Division No. 2.

May 9, 1899.

MUNICIPAL CORPORATIONS — ACTION ON CONTRACTOR'S BOND.

A bond was given to a city by a contractor for a public improvement, conditioned to pay all the bills for labor or material used in the construction of the improvement. On completion of the work the city settled with the contractor and his bondsmen, paying them the balance due on the contract, in consideration of an agreement by the bondsmen to pay all the bills for labor and material. The bondsmen failed to perform this agreement. Held that, as the materialmen were not bound by the settlement, the city could not sue in its own name, but only as trustee for the material men.

Appeal from circuit court, Harrison county; P. C. Stepp, Judge.

Action by the city of Bethany against L. W. Howard and others on a contractor's bond. From a judgment sustaining a demurrer to plaintiff's petition, plaintiff appeals. Affirmed.

J. W. Peery, for appellant. Sallee & Goodman and D. J. Heaston, for respondents.

GANTT, P. J.

From a judgment sustaining a demurrer to plaintiff's petition, plaintiff appeals. The cause is in this court on an order transferring it from the Kansas city court of appeals.

The petition is in these words: "Plaintiff, for amended petition, for cause of action states that it is a municipal corporation, duly and legally organized under the laws of the state of Missouri as a city of the fourth class; that on the 18th day of June, 1894, the plaintiff and the defendant L. W. Howard, by authority of and in pursuance to an ordinance duly passed and approved, made and entered into a written contract, a copy of which is herewith filed and made a part hereof, which was signed by said L. W. Howard and by this plaintiff, and by the terms of which said Howard agreed to dig and wall, according to certain plans and specifications mentioned in said contract, a certain well for the plaintiff, for the purpose of supplying water for its waterworks then in process of construction, for the agreed price of eight hundred dollars; that it was provided in said contract that said Howard should furnish to plaintiff weekly statements of the work done on, and material furnished for, said well, and by whom done and furnished, and the amounts thereof, and should also furnish to plaintiff receipted bills for said work and material, from the persons doing said work and furnishing said material, and it was expressly agreed in said contract that in consideration that said Howard should perform said work according to said plans and specifications, and would also pay for all work and labor done and material furnished by any person in the digging and walling of said well, said plaintiff would pay to said Howard said sum of eight hundred dollars, and that the payment for all work and labor done or material furnished in the performance of said contract by said Howard was, by the terms of said contract, made a part of the consideration thereof, and such payment for all labor and material furnished in the construction of said well by said Howard was made a condition precedent to the payment of said sum of eight hundred dollars by plaintiff; that it was further provided by said contract that this plaintiff should have the right to apply any part of the amount which might be due said Howard from it under said contract to the payment of all claims for work done or material furnished and used in constructing said well. Plaintiff further states that at the same time, to wit, on said 18th day of June, 1894, and as a part of the same transaction, and for the purpose of securing the faithful performance of all of the conditions of said written contract on the part of said L. W. Howard, and for the purpose of securing payment by him for all work and labor done and material furnished by any person or persons in the performance by said Howard of said contract, and in the construction by him of said well, the said Howard, as principal, and the said defendants Ashman H. Vandivert and Geo. L. Phillips, as securities, did then and there execute and deliver to this plaintiff their certain bond or writing obligatory, a copy of which is herewith filed and made a part hereof, under their hands and seals, wherein and whereby they acknowledged themselves to be held and firmly bound unto this plaintiff in the penal sum of one thousand dollars, the condition of which said bond or writing obligatory was that whereas said Howard had on that day entered into a written contract with this plaintiff, by which he had agreed to dig, wall, and complete said well for the plaintiff for the sum of eight hundred dollars, and the said Howard was to pay for all labor done on said well, and for all material used or furnished for same, the said well to be dug and walled up and finished according to certain written plans and specifications, which...