Coyle v. U.S. Gypsum Co.
| Decision Date | 17 April 1917 |
| Docket Number | 5620. |
| Citation | 166 P. 394,64 Okla. 153,1917 OK 191 |
| Parties | COYLE ET AL. v. UNITED STATES GYPSUM CO. ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied July 10, 1917.
Syllabus by the Court.
Under section 3881, Rev. Laws 1910, requiring public officers contracting for the construction of any public building to take from the contractor a bond for the payment of indebtedness incurred for labor or material furnished in the construction of such building, and section 3882, providing that no action shall be brought on said bond after six months from the completion of said building, the abandonment of work upon such building by the contractor is not to be regarded as its completion, so as to bar all actions not begun within six months therefrom. In such circumstances the word "completion," as used in the statute, should be construed to mean actual completion--when the building is in fact finished, and not when there was a cessation in the work, even though for a considerable period of time.
Where a contract for the construction of public buildings of the state, secured by a bond for the payment of all indebtedness incurred for labor or materials as required in section 3881, Rev. Laws 1910, authorized alterations to be made in the work to conform to the recommendations made by designated state officers, upon order of the architects under whose charge the work was being carried on, and which provided that the work added or omitted should be computed by the architects and the amounts so ascertained added or deducted from the contract price, the sureties, being bound by the terms of their undertaking, are not relieved of liability on account of the failure of the contractor to pay for materials used on said buildings, though changes were made in the original plans and specifications, by which the cost of the buildings was increased.
Where the building contract provided that 15 per cent. of the estimated approximate value of the materials furnished and labor performed in the proper execution of the work should be retained until final settlement, and this was not done, due to the fact that fraudulent statements were rendered by the contractor as to the amount of materials furnished and labor performed, and upon which the architects issued certificates showing the amount due and which recited that 15 per cent. of the balance due under the contract was retained, and where on account of such certificates the state made payments from time to time to the contractor, the sureties, as against the claims of the materialmen and laborers, are not entitled to be relieved of liability on account of the fraud of their principal, for the faithful performance of whose contract, in respect to such claimants, they stand obligated.
Error from Superior Court, Oklahoma County; Edward Dewes Oldfield Judge.
Action by the United States Gypsum Company against B. M. Daugherty and J. D. Kerby, partners doing business as the Daugherty-Kerby Construction Company, and W. H. Coyle and L N. Beadles; Oklahoma Portland Cement Company, intervener. From the judgment in favor of plaintiff and intervener defendants Coyle and Beadles bring error. Affirmed.
C. G. Horner, of Guthrie, for plaintiffs in error.
Keaton, Wells & Johnston, of Oklahoma City, for defendants in error United States Gypsum Co. and Oklahoma Portland Cement Co.
On September 1, 1910, B. M. Daugherty and J. D. Kerby, partners doing business under the firm name of Daugherty-Kerby Construction Company, entered into a contract with the state of Oklahoma, acting through the state board of public affairs, for the erection of certain public buildings for the use of the state school for the Deaf and Dumb at Sulphur, Okl. Following the making of said contract, and on November 11, 1910, the construction company in compliance with the requirements of section 3881, Rev. Laws 1910, made and executed to the state of Oklahoma its bond in the sum of $94,300, conditioned, among other things, that it should pay all indebtedness incurred for labor or material furnished in the erection of the building or buildings named in the contract, and which bond was signed by W. H. Coyle and L. N. Beadles as sureties. During the progress of the work on the buildings, the construction company became indebted to the United States Gypsum Company and to the Oklahoma Portland Cement Company, on account of materials purchased of said companies and used in the construction of the buildings. On January 3, 1912, the United States Gypsum Company brought its action against the principal and sureties on the indemnity bond to recover balance on account of said purchases. On December 3, 1912, the Oklahoma Portland Cement Company filed in said action its plea of intervention, whereby it sought to recover of the construction company and of the sureties on said bond the amount due it on account of materials furnished the construction company in the erection of said buildings. The trial resulted in a judgment in favor of the United States Gypsum Company in the sum of $719.26, and for the Oklahoma Portland Cement Company in the sum of $1,690.85, with interest. From the judgment, the sureties, Coyle and Beadles, bring error to this court, relying for a reversal upon the following grounds: (1) The statute of limitations; (2) changes made in the contract; (3) overpayment to the contractor.
Upon the first defense it is insisted that the contractor, on or about February 7, 1911, abandoned the work, and that as plaintiff's action was not brought until during the month of January, 1912, and the intervening petition was not filed until December 3d of said year, the court erred in not holding that the bar of the statute was complete at the time of the bringing of the action, and the filing of the plea of intervention. It is not claimed that the buildings were completed in the month of February, or within more than six months of the time of the filing of either the petition or plea of intervention. But it is said that as the construction company abandoned its work more than six months before said action was brought, and intervention filed, because of the statute no recovery can be had. The statute, pursuant to which the bond was given, and the action instituted, is found in sections 3881 and 3882, Rev. Laws 1910, relating to public works. Section 3881 provides, in substance, that when any public officer shall, under the laws of the state, enter into a contract exceeding $100 for the purpose of making any public improvement, or constructing any public buildings, or making repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureties payable to the state of Oklahoma, in a sum not less than the sum total in the contract, conditioned that the contractor shall pay all indebtedness incurred for labor or material furnished in the work. Section 3882 provides that the bond shall be filed in the office of the clerk of the district court of the county where the public improvement is made or public building is erected, and that any person to whom there is due any sum for labor or material furnished may bring action on said bond for the recovery of said indebtedness, provided that no action shall be brought on said bond after six months from the completion of said public improvements of public buildings.
It has been held, in actions to enforce statutory liens for material furnished or labor performed upon a building, upon which a lien might be filed,...
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