Devers v. Howard

• Decision Date: 14 June 1898
• Citation: 144 Mo. 671,46 S.W. 625
• Parties: DEVERS v. HOWARD et al.
• Court: Missouri Supreme Court

46 S.W. 625

144 Mo. 671

DEVERS v. HOWARD et al.

Supreme Court of Missouri, Division No. 2.

June 14, 1898.

MUNICIPAL CORPORATIONS — CONTRACTORS' BONDS — PERSONS ENTITLED TO SUE.

1. A material man may sue on a bond given a city for the performance of a contract and for the payment for material used, though he be not a party to the contract.

2. A city, having power to provide water for the use of its citizens, has the right, in letting a contract for digging a well, to require of the contractor a bond conditioned for the payment of material men, which may be enforced by the latter.

Case certified from Kansas City court of appeals.

Action by Merritt L. Devers against L. W. Howard, Ashman H. Vandivert, and George L. Phillips. A judgment for defendants was affirmed by the Kansas City court of appeals, which certified the cause to the supreme court. Reversed.

J. W. Peery, for appellant. Sallee & Goodman and D. J. Heaston, for respondents.

BURGESS, J.

This case was appealed from the circuit court of Harrison county to the Kansas City court of appeals, where the judgment was affirmed; but thereafter the case was certified to this court by the court of appeals, upon the ground that one of the judges of that court was of the opinion that the decision is in conflict with the decision of this court in the case of Board v. Woods, 77 Mo. 197.

This is an action upon a bond executed by the defendant Howard as principal, and defendants Vandivert and Phillips as his securities, to the city of Bethany, Mo. On the 18th day of June, 1894, Howard entered into a contract with the city of Bethany to dig for it a well on lot 4, block 7, of Blackburn's addition to said city, for the sum of $800. At the time of the execution of the contract, said Howard, as principal, and Ashman H. Vandivert and George L. Phillips, as securities, executed and delivered to said city their bond in the penal sum of $1,000, conditioned for the faithful performance of the work by Howard, and the payment by him for all labor done on said well, and for all materials furnished for or used on the same. The conditions and covenants of the bond, as set out in the petition, are that, whereas said L. W. Howard had on that day entered into a written contract with said city of Bethany, by which he had agreed to dig a well, and complete said well, for said city, for the sum of $800; the said L. W. Howard to pay for all labor done on said well, and for all material used or furnished for same; the said well to be dug and walled up and finished according to certain written plans and specifications, which were made a part of said contract; and if the said L. W. Howard should dig said well according to his said contract with said city of Bethany, and according to the plans and specifications, and should pay for all labor done to said well, and also pay for all material furnished for or used on the same, and should complete said contract in a good and workmanlike manner by the 18th day of July, 1894, then said obligation to be void; otherwise to remain in full force and effect. The petition then proceeds as follows: "Plaintiff further states that said condition in said bonds for the payment for all labor done or material furnished in the construction of said well was inserted therein, in pursuance to the provision of the said written contract between said L. W. Howard and said city of Bethany, for the sole and express purpose of protecting all persons who should do work upon or furnish material for the construction of said well, and because it was well known to all of the parties to said bond or writing obligatory that said L. W. Howard was wholly and totally insolvent, as hereinbefore alleged. Plaintiff further states: That relying upon the said provisions in said written contract between said L. W. Howard and said city, and upon the indemnity and protection provided and offered thereby, and relying solely upon the said conditions and terms of said bond or writing obligatory, and knowing that said L. W. Howard was insolvent, he did, after the execution of said contract and said bond, and during the construction of said well, furnish to said L. W. Howard the following material, of the value stated, and which was by him, the said L. W. Howard, used in the construction of said well, to wit: 139½ perch of stone, at $1 per perch, $139.50; by cash, $42.60; balance due, $90. That said L. W. Howard has failed and neglected to pay for the same, although often requested so to do, and the whole amount thereof is yet due and unpaid. Plaintiff further states that after the completion of said well, to wit, about the 17th day of August, 1894, he presented his bill for the material aforesaid to the proper officers of said city of Bethany, and demanded and requested said city to protect the plaintiff in his said claim, and to deduct the amount thereof from any balance that might be due to said L. W. Howard for constructing said well; that thereupon said city of Bethany was about to exercise the right conferred upon it by said contract, to pay said claims for work and material out of the balance claimed by said defendants to be due on said contract, and was about to pay the claims of plaintiff and others who had furnished materials for the construction of said well, when the defendants, and each of them in his own proper person, appeared before the board of aldermen of the said city of Bethany on or about the said 17th day of August, 1894, and then and there admitted and agreed that they were liable, under said condition of said contract and bond, for said bills of plaintiff and others who had furnished material for the construction of said well, and that if said city of Bethany would receive and accept said well from them, and would pay to the defendants the sum of one hundred and ninety-six dollars and seventy-five cents, the balance due for constructing said well, they, the said defendants, would immediately pay to this plaintiff and the other persons who had furnished material for the...