City of St. Joseph ex rel. Consolidated Stone Co. v. Pfeiffer Stone Co.

• Citation: 26 S.W.2d 1018,224 Mo.App. 895
• Parties: CITY OF ST. JOSEPH EX REL., THE CONSOLIDATED STONE COMPANY, A CORPORATION, APPELLANT, v. PFEIFFER STONE COMPANY, T. W. HACKETT, UNION INDEMNITY COMPANY OF NEW ORLEANS, RESPONDENTS
• Decision Date: 07 April 1930
• Court: Kansas Court of Appeals

26 S.W.2d 1018

224 Mo.App. 895

CITY OF ST. JOSEPH EX REL., THE CONSOLIDATED STONE COMPANY, A CORPORATION, APPELLANT, v. PFEIFFER STONE COMPANY, T. W. HACKETT, UNION INDEMNITY COMPANY OF NEW ORLEANS, RESPONDENTS

Court of Appeals of Missouri, Kansas City

April 7, 1930

Appeal from the Circuit Court of Buchanan County.--Hon. L. A Vories, Judge.

AFFIRMED.

Judgment affirmed.

John C Landis, Jr., and John C. Landis III for appellant.

Alva F Lindsay and Culver, Phillip & Voorhees for respondents.

BLAND, J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.

This is a suit on a contractor's bond in the penal sum of $ 92,500. The case was tried before the court without the aid of a jury resulting in a judgment in favor of defendants.

The facts show that the defendant, Hackett, entered into a contract with the city of St. Joseph to erect a contagious hospital in said city. Hackett furnished the bond in suit with the defendant, Union Indemnity Company, as surety. Defendant, Pfeiffer Stone Company of St. Joseph, took the sub-contract under Hackett to furnish the stone to be used in the erection of the building. The Pfeiffer Stone Company in turn purchased the stone from the relator, the Consolidated Stone Company of Bedford, Indiana. This stone was furnished by the relator, cut, numbered and ready to be set in their proper places in the building. Hackett paid the Pfeiffer Stone Company the amount agreed upon between them for the purchase price of the stone except the sum of $ 358, which was not paid because Hackett was notified by the attorney for the relator not to pay the amount remaining due. The Pfeiffer Stone Company was to pay the relator the sum of $ 2960.40 for the stone but in fact paid only $ 144.57 of that amount, leaving a balance of $ 2815.83 due relator.

The material parts of the bond in suit read as follows:

"Now, therefore, the condition of this obligation is such that if the principal shall faithfully perform the contract on his part, and satisfy all claims and demands, incurred for the same, and shall fully indemnify and save harmless the owner from all cost and damage which he may suffer by reason of failure so to do, and shall fully reimburse and repay the owner all outlay and expense which the owner may incur in making good any such default, and shall pay all persons for all material, lubricants, oil and gasoline used in or consumed in the construction of such work and for all labor performed in such work whether by subcontractor or otherwise, who have contracts directly with the principal for labor or material then this obligation shall be null and void; otherwise it shall remain in full force and effect."

The main question presented in this appeal is whether a bond given to secure the payment of materials furnished for use in a public building by persons "who have contracts directly with the principal for . . . material" can be construed and held to be a bond covering all material entering into the construction of the building, by whomsoever furnished.

It is claimed by relator that section 1040, Revised Statutes 1919, as amended (see Laws of 1925, p. 127) and section 1041, Revised Statutes 1919, should be read into the bond. Section 1040, as amended, places a duty upon the Board of Public Works, in letting the contract to Hackett, of requiring the execution of a bond by him which should "be conditioned for the payment of all material, lubricants, oil and gasoline used in or consumed in the construction of such work whether by subcontractor or otherwise." Section 1041 gives the right to certain persons to bring suit upon the bond described in section 1040.

It is also relator's contention that the purpose of the statute in requiring the bond was to afford materialmen, who furnished materials to go into such buildings as could not be subjected to mechanics' liens, with the same means of protection as is afforded in the mechanics' lien law where the building or improvement is not of a public character and that relator would have been entitled to a mechanic's lien in this case if the building had not been of that character.

Relator cites many cases holding that the statutory provisions are to be read into bonds taken under the statute. [Fogarty v. Davis, 264 S.W. 879, 880; Zellars v. Surety Co., 210 Mo. 86, 92, 108 S.W. 548; State ex rel. v. Rubber Mfg. Co., 149 Mo. 181, 212, 50 S.W. 321; Henry Co. v. Salmon, 201 Mo. 136, 162, 163, 100 S.W. 20; Board of Education v. Fid. & Guaranty Co., 155 Mo.App. 109, 115, 134 S.W. 18.] There is nothing in these cases holding that a court can interpret plain language of a bond when there is no need for interpretation. In other words these cases do not hold that the courts may construe a bond to mean differently than expressly provided in the bond actually taken. As is well said in Pingrey on Suretyship and Guaranty, p. 170:

The measure of liability of sureties is fixed by the terms of the instrument they sign, and such undertaking cannot be enlarged or varied by judicial construction. Their undertaking will be construed as the words used are ordinarily understood."

Whether the surety is a compensated one or not, the rule applicable to the construction of bonds is that, for the purpose of ascertaining the meaning of the language used therein, and thus in determining the extent of the guaranty, the same rules of construction are to be applied as are applied in other instruments. [Kansas City to Use v. Youmans, 213 Mo. 151, 166, 167, 112 S.W. 225; Jobes v. Miller, 201 Mo.App. 45, 47, 209 S.W. 549.] Of course if it be a fact that the surety herein is a compensated surety the general rule applies which is, if there is any ambiguity in a written contract it will be construed most strongly against the person using the language giving rise to such ambiguity. [Union State Bank v. American Surety Co., 23 S.W.2d 1038, 1044; State to Use v. Cochrane, 264 Mo. 581, 175 S.W. 599.] However, there is no ambiguity in this bond. It provides in no uncertain terms that it covers persons "who have contracts directly with the principal for . . . material." As relator had no contract directly with Hackett, the contractor, the furnishing of material by it was not covered by the...