City of Sterling v. Wolf

• Decision Date: 09 November 1896
• Parties: CITY OF STERLING v. WOLF et al.
• Court: Illinois Supreme Court

163 Ill. 467

45 N.E. 218

CITY OF STERLING

v.WOLF et al.

Supreme Court of Illinois.

Nov. 9, 1896.

Appeal from appellate court, Second district.

Action by the city of Sterling against David Wolf and others on a bond. From a judgment reversing a judgment in favor of plaintiff (61 Ill. App. 515), plaintiff appeals. Affirmed.

C. L. Sheldon, for appellant.

J. E. McPherran and A. A. Nolfersperger, for appellees.

WILKIN, J.

Michael Real entered into a written contract with the city of Sterling to construct certain sewers for it. Appellees, with others, became his sureties to the city, in the sum of $41,402, for the faithful performance of his contract. The city sued on this obligation, and obtained a judgment for the penalty of the bond, debt, and $2.44 damages. Afterwards a breach was assigned, claiming damages for the Evans & Howard Fire-Brick Company for material furnished Real which he failed to pay for. Certain pleas to this new assignment were held bad on demurrer, and, the defendants failing to plead over, damages were assessed by a jury at $3,615.90, and judgment for that amount accordingly entered. That judgment has been reversed by the appellate court. 61 Ill. App. 515. The appellate court agreed with the circuit court that the defendants' pleas were bad, but held that the assignment of breach showed no right of recovery in the parties for whose use it was made, and therefore the demurrer should have been carried back and sustained to it. This decision is based upon the ground that the contract between the city and Real does not bind him to pay third parties for material used in performing the contract, and therefore his failure to do so constituted no breach of the obligation of his sureties. Without reference to the question whether the contract of suretyship by appellees is such a bond as that, under section 21 of the practice act (Rev. St. p. 1074), a writ of inquiry could properly be sued out by these parties, the decision of the appellate court is, we think, clearly right, for the reason stated in its opinion. It is not claimed that the contract, in express terms, bound Real to pay for the materials. He agreed to ‘furnish all labor, materials, and tools necessary to execute the entire work’; but it is not pretended that, under that agreement, appellees can be compelled to pay for such labor, material, and tools. In a proposal by Real to the city, he agreed to enter into a contract to perform the work, and to ‘furnish such sureties for the faithful performance of such contract, the payment of materials contracted for, and for the payment of laborers' wages and liens that may arise therefrom, as may be approved by the city...