Clatsop County v. Feldschau

• Decision Date: 22 March 1921
• Citation: 99 Or. 680,196 P. 379
• Parties: CLATSOP COUNTY EX REL. ROSS HIGGINS & CO. v. FELDSCHAU ET AL.
• Court: Oregon Supreme Court

196 P. 379

99 Or. 680

CLATSOP COUNTY EX REL. ROSS HIGGINS & CO. v. FELDSCHAU ET AL.

Supreme Court of Oregon

March 22, 1921

Department 1.

Appeal from Circuit Court, Clatsop County; James A. Eakin, Judge.

Action by Clatsop County, on the relation of Ross Higgins & Co. against F. C. Feldschau and another, and the United States Fidelity & Guaranty Company. Judgment for relator, and defendant surety company alone appeals. Modified and affirmed.

This is an action upon a bond given by defendant Feldschau with the defendant United States Fidelity & Guaranty Company as surety to secure the performance of a contract entered into between the county and Feldschau for roadwork to be done by the latter, being the bond required by section 2991, Or. L Neither Feldschau nor Erickson was served or appeared in the case. The principal condition of the bond is as follows:

"Now therefore, if the principal herein shall faithfully and truly observe and comply with the terms, conditions and provisions of the said contract, in all respects, and shall well and truly and fully do and perform all matters and things by him undertaken to be performed under said contract, upon the terms proposed therein, and within the time prescribed therein, and shall indemnify and save harmless the county of Clatsop, state of Oregon, its officers and agents, as therein stipulated, against any direct or indirect damages that shall be suffered or claimed, or injuries to persons or property during the construction of said road and until the same is accepted and shall pay all laborers, mechanics, subcontractors and materialmen, and all persons who shall supply such laborers, mechanics or subcontractors with materials supplies or provisions for carrying on such work, and all just debts, dues and demands incurred in the performance of such work, and shall in all respects faithfully perform said contract according to law, then this obligation shall be void, otherwise to remain in full force and effect."

The complaint, after stating the contract and setting out the bond in hæc verba, contains the following allegation:

"That although said contract and said bond were in the name of the defendant, Fred C. Feldschau, it was a matter of fact that the same were executed for the use and benefit of the said defendants, F. C. Feldschau and Adolph Erickson, and that they were partners in said contract, each agreeing to pay and satisfy all the costs and expenses of completing said work, and to divide the profits thereof, if any."

This averment is denied by the answer. The complaint further states that Feldschau and Erickson entered upon the performance of the contract, and that to carry out the same it was necessary that defendant Feldschau should employ in the prosecution of the work a large number of men and horses; that he did so during the whole time he was engaged in said work; that as a necessary part of said work he furnished feed for the horses and provisions for the men employed, the necessity for such feed and provisions being set forth at length; that the relator at the request of defendants Feldschau and Erickson furnished to Feldschau the provisions, feed, and supplies set forth in the complaint, which were furnished by said defendants to the men employed in said work and given to the horses used in the prosecution of the work, for all of which the defendants Feldschau and Erickson agreed to pay relator the sum of $4,711.22, no part of which has been paid except $725.03, leaving due thereon $3,986.19; and that at the time relator sold and delivered said materials and supplies to defendant Feldschau, which were furnished each month, it was agreed that they were to be paid for on the first of the next month following, and if not so paid the amount due therefor should draw interest at the rate of 6 per cent. per annum from the 1st day of such following month until paid. Then follows a statement of the value of goods sold each month, and a prayer for interest on the separate items.

The cause being put at issue by the answer, a trial was had by the court, a jury being waived, and findings and judgment for the whole amount prayed for were made and given in favor of relator, except an item of $26.25 for table...