City of St. Louis v. Ruecking Const. Co.

• Decision Date: 02 June 1919
• Docket Number: No. 20127.,20127.
• Citation: 212 S.W. 887
• Parties: CITY OF ST. LOUIS ex rel. and to Use of HYDRAULIC PRESS BRICK CO. v. RUECKING CONST. CO. et al.
• Court: Missouri Supreme Court

212 S.W. 887

CITY OF ST. LOUIS ex rel. and to Use of HYDRAULIC PRESS BRICK CO. v. RUECKING CONST. CO. et al.

No. 20127.

Supreme Court of Missouri, Division No. 1.

June 2, 1919.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Consolidated suits by the City of St. Louis, at the relation and to the use of the Hydraulic Press Brick Company, against the Ruecking Construction Company and another. From judgment for relator, defendants appeal. Case transferred.

See, also, 212 S. W. 889.

On the 29th of November, 1915, three several suits were filed in the circuit court for the city of St. Louis by the city of St. Louis at the relation and to the use of the Hydraulic Press Brick Company against the Ruecking Construction Company and the Southern Surety Company. The basis of each of the suits is a bond that was executed by the defendant construction company with the defendant surety company as its surety to the city to secure the performance of a contract entered into between the city and the defendant construction company for the paving of certain streets and alleys. The suits were by agreement consolidated and tried as a consolidated cause. The bonds sued on are identical in form and terms, except as to amounts, and the pertinent part of each is as follows:

"Said construction company, as principal, and said surety company, as surety, hereby bind themselves and their successors or assigns unto the city of St. Louis in the sum of $____, conditioned that in the event the said construction company shall faithfully and properly perform said contract, and pay to the proper parties all amounts due for material and labor used and employed in the performance thereof, then this obligation to be void; otherwise in full force and effect. Said bond may be sued on 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 hereof, provided that no such suit shall be instituted after the expiration of ninety days from the completion of any work under the above contract."

The relator, Hyraulic Press Brick Company, furnished brick for the paving required by the contracts, and for which the defendant construction company failed to pay. The latter company duly completed the several contracts, and, after the expiration of more than 90 days from the completion of all the contracts, the relator instituted the several suits on the bonds to recover the price of the brick so furnished.

The petition in each case declares on the bond sued on according to its legal effect, except that it is silent as to the cause limiting to 90 days the time in which suit may be brought thereon by a materialman, assigns as breach the failure of the defendant construction company to pay relator for brick so furnished by it, and lays relator's damages at the value of such brick.

The answer of defendant surety company alleges that the bond was not sued on until after the expiration of more than 90 days from the completion of the work under the contract, and that, by reason of the provision of the bond that no suit could be instituted thereon in the name of the city of St. Louis at the instance of any materialman, etc., to the use of such materialman, etc., after the expiration of 90 days from the completion of the work under the contract, the plaintiff "is forever barred from a...