LA Crosse Lumber Company v. Schwartz

• Decision Date: 13 May 1912
• Parties: LA CROSSE LUMBER COMPANY (a corporation), Appellant, v. EDWARD SCHWARTZ, B. G. VEITH and J. F. MOERSCHEL, Respondents
• Court: Kansas Court of Appeals

147 S.W. 501

163 Mo.App. 659

LA CROSSE LUMBER COMPANY (a corporation), Appellant, v. EDWARD SCHWARTZ, B. G. VEITH and J. F. MOERSCHEL, Respondents

Court of Appeals of Missouri, Kansas City

May 13, 1912

Appeal from Cole Circuit Court.--Hon. John M. Williams, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Silver & Dumm for appellant.

(1) The fact that the bond or surety agreement sued on was made to the board of managers of the Confederate Soldiers' Home instead of to the state of Missouri, does not render it invalid or preclude recovery thereon. Waterman v Frank, 21 Mo. 108; Barnes v. Webster, 16 Mo 258; Henoch v. Chaney, 61 Mo. 129. A bond of a county treasurer executed to the state instead of to the county, as required by statute, is good as a common law bond. State v. Thomas, 17 Mo. 503; State v. Lafayette Co., 75 Mo. 371. (2) While said bond or contractor's surety agreement was not executed to the state as required by the statute just referred to, still it was and is a good common law bond. See authorities, supra; State v. Thomas, 17 Mo. 503.

Pope & Lohman for respondents.

Revised Statutes 1909, sections 1247-8 were in force at the time of the making of the bond. If a bond had been given, conditioned as therein required, the plaintiff could have maintained an action thereon, in the name of the state, for its use. R. S 1909, sec. 1248. The bond should have been given to the state and should have been conditioned for the payment of all materials used in the construction of the building as therein required. R. S. 1909, sec. 1247. But the bond was not given to the state, and was not conditioned for the payment of all material used in such work as required by the law then in force. It was merely a bond to the parties charged with the erection of the building to protect the owner thereof from debts or liens on account of materials furnished. The parties must abide by the contract as made; courts cannot make a contract for them. Thornton v. Boyce, 56 Mo.App. 79; Beatie v. Coal Co., 56 Mo.App. 221; Mach. Co. v. Bobbst, 56 Mo.App. 427; Eaton v. Coal Co., 125 Mo.App. 194; Realty Co. v. Brewing Assn., 133 Mo.App. 261.

OPINION

JOHNSON, J.

This is an action on a building contractor's bond to recover for lumber and other materials furnished by plaintiff to the contractor for use in the construction of the building on account of which the bond was given. The defendants who are the contractor and his sureties interposed a demurrer to the petition which the court sustained. Plaintiff declined to plead further and appealed from the judgment rendered against it. The material facts alleged in the petition are as follows: The Confederate Soldiers' Home near Higginsville is one of the eleemosynary institutions of the state and is under the control of a board of managers appointed by the governor with the advice and consent of the Senate. In 1909 the board entered into a contract with the defendant contractor (Schwartz) for the building of a dormitory at the Home according to the plans and specifications adopted by the board and agreed on the consideration of $ 7388 for the performance of the contract. The board required a bond of Schwartz to secure the performance of the contract and in compliance with the requirement, Schwartz, as principal, and the other two defendants as sureties, executed and delivered to the board the following undertaking:

"Know all men by these presents: That Edward Schwartz, contractor and builder of the city of Jefferson, Missouri, as principal, and J. F. Moerschel, B. G. Vieth, as securities, are held and firmly bound unto the board of managers of the Confederate Soldiers' Home in Higginsville, Missouri, in the sum of five thousand dollars ($ 5000), for the payment of which we bind ourselves, our heirs, executors and administrators by these presents.

"That condition of the foregoing obligation is such, that whereas, the said Edward Schwartz entered into contract with the said board the 30th day of September, 1909, to build, erect and complete a certain dormitory building on the premises of the Confederate Soldiers' Home in Higginsville, Missouri, as set forth in the above said contract, and to furnish all the necessary material and labor required by the plans and specifications prepared for the same by Miller & Opel, architects of Jefferson City, Missouri, for the sum of seven thousand three hundred and eighty-eight dollars ($ 7388).

"Now if the said Edward Schwartz shall well and truly perform his contract with the said board, and shall deliver the work finished throughout according to the plans and specifications, and deliver the work to the owner free from all debts or liens of every character on account of materials furnished or labor performed in and about the said building, then this obligation shall be void; otherwise to remain in full force and effect. Witness our hands this 11th day of October, 1909.

"J. F. MOERSCHEL. "EDW. SCHWARTZ,

BEN G. VIETH."

Schwartz completed the building according to the terms of his contract and the board accepted it. Plaintiff furnished lumber and other materials to Schwartz for use in the construction of the building and they were so used. But Schwartz failed to pay in full for such materials and is indebted to plaintiff on account thereof in the sum of $ 826.20. Plaintiff seeks to recover on the bond on the theory that it was taken by the board for the benefit of subcontractors, materialmen and laborers who should furnish material and labor for the building.

The demurrer attacked the petition on three principal grounds: (1) That it does not state a cause of action. (2) Shows on its face that plaintiff in suing in its own name and not as a relator is not a proper party plaintiff. (3) Discloses that Schwartz has fully performed his contract and the obligation of his bond since he had delivered the building free and clear of any debt or lien and the board has accepted it.

In 1895, statutes were enacted requiring counties, cities, towns, etc., "to take a bond from all contractors for public work done . . . containing a condition for the payment for all labor done and material furnished for such work and giving laborers and materialmen a right of action thereon." [Laws 1895, p. 240.]

It was held by the St. Louis Court of Appeals in Brick Co. v. School District, 79 Mo.App. 665, that this statute afforded no cause of action to materialmen or laborers against the officers of a municipal corporation for failure to take a bond from a contractor for public work. And doubtless to compel obedience to the law as well as to enlarge its scope the statutes were amended in the revision of 1909 and as amended they make it "the duty of all officials, boards, commissions, commissioners or agents of the state or of any county, city, town, etc., . . . to require every contractor for such work to execute a bond to the state, county, city, . . . or town . . . conditioned for the payment for all material used in such work and for all labor performed in such work whether by subcontractor or otherwise." [Section 1247, Revised Statutes 1909.]

In the next section the right...