City of Ocala v. Continental Cas. Co.

• Decision Date: 04 April 1930
• Citation: 127 So. 326,99 Fla. 736
• Parties: CITY OF OCALA, to Use of STANDARD OIL CO. OF NEW JERSEY v. CONTINENTAL CASUALTY CO. et al.
• Court: Florida Supreme Court

127 So. 326

99 Fla. 736

CITY OF OCALA, to Use of STANDARD OIL CO. OF NEW JERSEY v. CONTINENTAL CASUALTY CO. et al.

Florida Supreme Court, Division B.

April 4, 1930

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Action by City of Ocala, for the use and benefit of the Standard Oil Company of New Jersey, against the Continental Casualty Company and another. To review an adverse judgment, plaintiff brings error.

Affirmed.

COUNSEL

Martin H. Long, of Jacksonville, for plaintiff in error.

Marks Marks & Holt, of Jacksonville, for defendants in error.

OPINION

WHITFIELD P.J.

In an action brought by the appellant against the appellees on a surety bond, it is alleged that the defendant Baker & Foulks Inc., contracted with the city of Ocala for the improvement of certain streets according to plans and specifications made a part of the declaration; that it was a condition of such contract plans and specifications that the contractor should give a bond in the form shown in the specifications containing the condition that the contractor would fully and promptly pay all claims for supplies, labor, and materials used in the prosecution of said work; that, after signing the contract, the contractor 'furnished to the said City, a certain bond with the defendant, Continental Casualty Company as surety thereon, which referred to said contract and made the same a part thereof as fully and to the same extent as if copied therein; that said bond did not contain the condition required by the said City or by the Statutes of the State of Florida, as set forth in Chapter 10035 of the Laws of Florida of 1925; * * * that notwithstanding the said omission, the terms of the said bond and contract are such and the Statutes of this State are so read into said contract whether written therein or not, that the defendant, Continental Casualty Company, then and thereby became bound and obligated to pay the persons furnishing materials and supplies in connection with the prosecution of said work to the amount of said penal sum of said bond, to-wit, Sixty-four Thousand Dollars ($64,000.00); that the said Continental Casualty Company was paid the premium customarily charged and required by indemnity companies for entering into bonds containing the obligations set forth in Chapter 10035 of the Laws of Florida of 1925, and accepted and retained the same; that * * * the use plaintiff, Standard Oil Company of New Jersey, sold and delivered to the said Baker & Foulks Inc., certain asphalt and other materials and performed certain services and paid certain sums necessary for the transportation and delivery of the said materials to the said principal contractor,' which have not been paid for.

The notice to bidders, made a part of the declaration, contains the following:

'5. The successful bidder will be required to give a bond acceptable to the City in the full amount of the contract, with a Surety Company authorized to do business in Florida, and having an agent resident in Marion County Florida as surety, said bond to be countersigned by such resident agent.'

'9. The following papers shall constitute the contract:

'(a) The published notice to Contractors.

'(b) Memorandum of the agreement.

'(c) The proposal or bid.

'(d) The duly executed bond.

'(e) Specifications, hereto attached.

'(f) Plans and profiles prepared by the Engineer.'

'11--Contract and Bond.

'The successful bidder shall within five (5) days after the date of the City's notice to him, sign the Contract; and execute bond within fifteen days of said notice. The bond shall be for an amount equal to one hundred (100) per cent of the contract; and shall guarantee the faithful execution and completion of the contract, and fulfilment of all the covenants and agreements, and stipulations on the part of the contractor to be kept and performed.'

The contractor 'shall settle all claims for labor, materials and equipment, and satisfy the City that there are no outstanding debts or claims as the result of the execution of his contract before the Engineer's final estimate will be paid him.'

The bid made by the contractor contained an agreement 'to furnish acceptable bond in an amount equal to one hundred (100) per cent of the contract.'

The instructions to bidders embraced a blank copy of a 'contractor's bond,' to be executed by the principal and surety, without seals, which blank form contained a provision that the contractor 'shall fully and promptly pay all claims for supplies, labor and materials used in the construction'; but this form of 'contractor's bond' was not executed by the contractor or by the surety company, and the bond executed by the surety company contains no such provision. The notice to bidders stated that 'the duly executed bond' would be a part of the contract.

The contract entered into by the city and the contractor, dated November 3, 1926, stipulated that the contractor would at his own cost and expense 'do all the work, furnish all materials, equipment and labor necessary to do the same, and under penalty of the bond attached hereto, and bearing date of November 1st 1926.' No bond 'bearing date of November 1st 1926,' appears in the record. The contract made no reference to the bond that was given by the surety dated January 5, 1927.

The bond here sued on was executed January 5, 1927, by the surety company, but not by the contractor. It contains the following:

'Whereas, The Principal has entered into a written contract dated 192, with the Obligee, for certain street improvements in the city of Ocala, Florida, which contract is hereby referred to and made a part hereof, as fully and to the same extent as if copied at length herein.

'Now, therefore, The condition of this obligation is such, that if the Principal shall indemnify the Obligee against any loss or damage directly arising by reason of the failure of the Principal to faithfully perform said contract, then this obligation shall be void; otherwise to remain in full force and effect.

'Provided however, and upon the...