Clifton v. Norden

• Citation: 178 Minn. 288,226 N.W. 940
• Decision Date: 11 October 1929
• Docket Number: No. 27253.,No. 27252.,27252.,27253.
• Parties: CLIFTON et al. v. NORDEN et al.
• Court: Supreme Court of Minnesota (US)

226 N.W. 940

178 Minn. 288

CLIFTON et al. v. NORDEN et al.

No. 27252.

No. 27253.

Supreme Court of Minnesota.

October 11, 1929.

Appeal from District Court, Polk County; Wm. Watts, Judge.

Action by George A. Clifton and another against Emil Norden and another. From an order denying its alternative motion for judgment notwithstanding the verdict for plaintiffs, or a new trial, defendant National Surety Company appeals, and, from an order denying their motion for an order for judgment notwithstanding the verdict for a larger amount than that allowed them by the verdict, or, in the alternative, for a new trial, plaintiffs appeal. Affirmed on plaintiffs' appeal, and reversed on defendants' appeal.

L. A. Wilson, of Mahnomen, for plaintiffs appellants.

Doherty, Rumble, Bunn & Butler, of St. Paul, for defendant appellant.

STONE, J.

In this action upon a public contractor's bond there was a verdict for plaintiffs. Defendant Norden was the contractor and does not appeal. The surety, defendant National Surety Company, appeals from an order denying its alternative motion for judgment notwithstanding or a new trial. Plaintiffs, having moved for an order for judgment notwithstanding for a larger amount than that allowed them by the verdict, or, in the alternative, for a new trial, also appeal from the order denying that motion.

Plaintiffs sue for the value of labor and materials used in the repair of motortrucks belonging to subcontractors which were employed by defendant Norden in the execution of a highway contract. The amount claimed is the cost for both labor and materials of installing a new main bearing, pistons, drive shaft, universal joints, cylinder blocks complete with pistons and rings, an oil gauge, main switch, springs, connecting rod, batteries, and tires. The repairs were made during the course of the work, and there is no proof that any of the new parts were worn out on the job. The charge to the jury was that "the Bonding Company is only chargeable for the value of the repair, or for the work that they put into those things, where it is not greater than the reasonable value of the use of the article was upon the contract." This instruction prevented plaintiffs' getting the entire sum for which they sued, and is assigned as error on plaintiffs' appeal. They ask judgment for the total cost of the repairs. It is argued for defendant surety that none of the items are within the coverage of its bond. The bond, as required by G. S. 1923, § 9700, is "for the use of the obligee [the County of Mahnomen] and of all persons doing work or furnishing skill, tools, machinery, or materials or insurance premiums or equipment or supplies for any camp maintained for the feeding or keeping of men and animals engaged under, or for the purpose of, such contract," and is conditioned for the payment "of all just claims for such work, tools, machinery, skill, materials, insurance premiums, equipment and supplies, for the completion of the contract in accordance with its terms." So the question is one of statutory construction. Were the labor and new parts furnished by plaintiffs, who maintained a public garage and shop near the work for the storage and repair of automobiles and motortrucks, embraced within the language of the statute? Were they or any of them "work, * * * tools, machinery, or materials" furnished under or for the purpose of such contract or for its completion in accordance with its terms?

Decision is not controlled, as in case of the ordinary written contract, by what the parties themselves may have contemplated as being within the bond. Its language is that of statute, and the question, what did the Legislature mean? As left by the revision of 1905 (R. L. 1905, § 4535), the law was in its present form except for the amendment by Laws 1923, c. 373, § 1, requiring a bond to protect, in addition to those doing work or furnishing skill, tools, machinery, materials, or insurance premiums, those also who furnish "equipment or supplies for any camp maintained for the feeding or keeping of men and animals engaged under, or for the purpose of, such contract." That amendment was designed to secure protection for those who furnished such things as food for horses and men, and camp supplies, which were not considered "materials" for the work under the old statute. Fay v. Bankers' Surety Co. (1914) 125 Minn. 211, 146 N. W. 359, Ann. Cas. 1915C, 688; Westling v. Republic Cas. Co., 157 Minn. 198, 195 N. W. 796; Standard Oil Co. v. Remer, 170 Minn. 298, 212 N. W. 460; Hansen v. Remer, 160 Minn. 453, 200 N. W. 839. Our statute goes much farther than many others in including "tools, machinery, or materials." See Franzen v. Southern Surety Co., 35 Wyo. 15, 246 P. 30, 46 A. L. R. 496. In consequence, we have held that the rental of tools and machinery used on a public contract is within the coverage of the bond. Miller v. American Bonding Co., 133 Minn. 336, 158 N. W. 432. So also as to the rental of horses. Dawson v. Northwestern Const. Co., 137 Minn. 352, 363, 163 N. W. 772. There has never been question but that coal (Fay v. Bankers' Surety Co., 125 Minn. 211, 146 N. W. 359, Ann. Cas. 1915C, 688) and gasoline and oil (Bartles-Scott Oil Co. v. Western Surety Co., 161 Minn. 169, 200 N. W. 937), used in generating power for the performance of a contract, are within the bond.

Literally, in its inclusion of equipment and machinery, the statute reaches the cost of new articles purchased by a contractor for use and used on a given work, even though they become part of his permanent and general equipment and will serve on other and perhaps many other contracts as well. But to conclude that the language was meant so literally would lead at once into absurdity. Plainly it was not intended that sureties for a $25,000 contract may be liable for the cost of a steam shovel outfit purchased, to be first used on that job, at a cost of possibly twice the contract price. So, as frequently happens, the language must be restricted within the reasonable limits easily found when applied to its subject-matter. The law was not intended to permit a contractor to go onto a bonded job with a run-down outfit and have it rebuilt at the expense of his sureties. Public contracts require the contractors to furnish their own equipment. They imply that it shall come onto the job complete, ready for use, and without any obligation against the work arising from antecedent conditions. Moreover, they demand, expressly or by direct implication, that his equipment be maintained by the contractor in a workable condition to the end that the job may be done expeditiously and within the contract price. In consequence, no Legislature has enacted, unless it be that of West Virginia (see Hicks v. Randich, 144 S. E. 887), and no court held, that the bondsmen shall be liable for the purchase price of contractors' equipment, unless perchance it is of a kind which is to be used only on the job in question and is wholly consumed thereon, or at least consumed to the extent that there is no...