City of St. Louis v. Hill-O'Meara Const. Co.

• Citation: 158 S.W. 98
• Parties: CITY OF ST. LOUIS v. HILL-O'MEARA CONST. CO. et al.
• Decision Date: 24 June 1913
• Court: Court of Appeal of Missouri (US)

158 S.W. 98

CITY OF ST. LOUIS v. HILL-O'MEARA CONST. CO. et al.

St. Louis Court of Appeals. Missouri.

June 24, 1913.

Rehearing Denied July 5, 1913.

1. MUNICIPAL CORPORATIONS (§ 346)—CONTRACTS — CONTRACTOR'S BOND — CONSTRUCTION.

A bond, given by a contractor with a city for the construction of a building, conditioned as required by Rev. St. 1899, §§ 6761, 6762 (Rev. St. 1909, §§ 1247, 1248), and an ordinance of the city for the payment by the contractor

of all material used and labor performed on such work, whether by subcontract or otherwise, should be interpreted in the light of the statute and ordinance, and with a view to effectuating the legislative intent manifested thereby, although its terms and provisions could not be enlarged by the statute or ordinance.

2. MUNICIPAL CORPORATIONS (§ 345)—CONTRACTS —BOND OF CONTRACTOR—POWER TO REQUIRE.

The city of St. Louis had power and authority to require a contractor for the construction of a city building to give a bond conditioned for the payment of material used and work and labor performed on the work, by subcontract or otherwise.

3. MUNICIPAL CORPORATIONS (§ 345)—CONTRACTS — CONTRACTOR'S BOND — PURPOSE OF STATUTE.

Under Rev. St. 1899, § 6761 (Rev. St. 1909, § 1247), providing that counties, cities, etc., making contracts for public work of any kind, shall require the contractor to execute a bond conditioned for the payment of all material used and labor performed on such work, by subcontract or otherwise, the purpose of requiring the bond is to afford those furnishing material and labor on a public work, which cannot be subjected to a mechanic's lien, the same measure of protection as is afforded by the mechanic's lien law, where the building or improvement is not of a public character.

4. MUNICIPAL CORPORATIONS (§ 347)—CONTRACTS —RIGHTS OF MATERIALMEN.

Under a bond given by a contractor with a city for the construction of a building, conditioned as required by Rev. St. 1899, § 6761 (Rev. St. 1909, § 1247), for the payment of material used and labor performed on such work, by subcontract or otherwise, a party furnishing plaster, lime, cement, and other materials to a subcontractor, who used them in the construction of the building in the manner contemplated by the contract, was entitled to the protection of such bond, since had the building been other than a public one, he would have been entitled to a mechanic's lien against the property.

5. MUNICIPAL CORPORATIONS (§ 347)—CONTRACTS —RIGHTS OF MATERIALMEN.

Under Rev. St. 1899, § 6761 (Rev. St. 1909, § 1247), providing that counties, cities, etc., making contracts for public work shall require the contractor to execute a bond conditioned for the payment of all material used and labor performed on such work, by subcontract or otherwise, the payment by the contractor to a subcontractor of the full contract price for the portion of the work done by the subcontractor does not affect the contractor's liability on the bond to the party furnishing materials to the subcontractor for use in the construction of the work.

6. MUNICIPAL CORPORATIONS (§ 347)—CONTRACTS —CONTRACTOR'S BOND—RIGHT OF ACTION.

One furnishing labor or materials to a subcontractor in carrying out the terms of a contract for the construction of public work stands in such privity of contract with the original contractor as to be entitled to sue on the contractor's bond, conditioned for the payment of all materials used and labor performed on such work by subcontract or otherwise.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action in the name of the City of St. Louis, to the use and for the benefit of the Contracting & Supply Company, against the Hill-O'Meara Construction Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Collins & Chappell, of St. Louis, for appellants. Bates & Blodgett and Granville Hogan, all of St. Louis, for respondent.

ALLEN, J.

This is an action on the bond of a contractor for the erection of an addition to the Insane Asylum of the City of St. Louis, brought in the name of said city, to the use and for the benefit of the relator, the Contracting & Supply Company, to recover a balance alleged to be due the relator for materials furnished to and for such building under contract with a subcontractor of the defendant Hill-O'Meara Construction Company, the latter being the original contractor. All the parties to the record are corporations. The plaintiff recovered, and the defendants prosecute the appeal.

It appears that on September 17, 1908, the defendant Hill-O'Meara Construction Company entered into a written contract with the city of St. Louis, whereby it contracted and agreed to construct certain additions to the Insane Asylum of said city. This contract contains the bond here sued upon, which was executed by the defendant Hill-O'Meara Construction Company as principal and its codefendant, the Mississippi Valley Trust Company, as surety. The bond is conditioned that the defendant "shall faithfully and properly perform the foregoing contract according to all the terms thereof, and shall, as soon as the work contemplated by said contract is completed, pay to the proper parties all amounts due for material and labor used and employed in the performance thereof." The bond also provides that "the same may be sued upon at the instance of any materialman, laboring man, or mechanic, in the name of the city of St. Louis, to the use of such materialman, laboring man or mechanic, for any breach of the conditions thereof."

The essential facts are not in dispute. It appears that on or about July 10, 1909, the defendant Hill-O'Meara Construction Company, the contractor, sublet to Smith & Watson Company, a corporation, that portion of the work to be done under the contract designated as "plastering." It further appears that thereafter, in reliance upon the contract of the Smith & Watson Company, with the defendant Hill-O'Meara Construction Company, the contract of the latter with the city, and the bond here sued upon, and at the special instance and request of the Smith & Watson Company and under contract with it, the relator from time to time furnished for and delivered to said building, while in the process of construction, certain plaster, lime, cement, and other materials which were actually used in the construction of said building in the manner contemplated by the said contract for the erection thereof; that the prices charged for the materials so furnished, as shown by the account filed with the petition, were the prices agreed upon between the relator and the said Smith & Watson Company, and were the reasonable value of the materials so furnished; and that the balance of $2,735.14 remained due plaintiff on account thereof.

The evidence discloses that after doing a portion of the plastering work, the Smith & Watson Company, having in the meantime changed its corporate name, abandoned its contract with the defendant Hill-O'Meara Construction Company for doing of said plastering, and that the defendant, Hill-O'Meara Construction Company was compelled to and did thereafter complete this work; that the payments made by the defendant Hill-O'Meara Construction Company to the Smith & Watson Company, or its successor, up to the time of the abandonment of said work, together with the amounts paid out by said defendant to other persons for completing the work to be done under said plastering contract, exceeded the price for which the Smith & Watson Company agreed to do the same.

The suit was instituted within 90 days after the completion of the work, as required by the ordinance under which the bond was given, sections 1988 and 1989 of Woerner's Revised Code of the City of St. Louis (1907), now sections 253 and 254 of the Revised Code of said city (Rombauer, 1912). The cause was tried before the court without a jury. The court found the issues against the defendants, and entered judgment for the relator and against the defendant Hill-O'Meara Construction Company, as principal, and ...