Dolese Bros. Co. v. Chaney & Rickard

Decision Date08 December 1914
Docket Number3521.
Citation145 P. 1119,44 Okla. 745,1914 OK 611
PartiesDOLESE BROS. CO. v. CHANEY & RICKARD ET AL.
CourtOklahoma Supreme Court

Rehearing Denied Jan. 30, 1915.

Syllabus by the Court.

Under section 2961, Stat. 1890 (section 1053, Rev. Laws 1910), the same rules of interpretation apply to contracts of suretyship as to other contracts.

After a contract of suretyship is interpreted and the intelligible meaning of its language is ascertained, it will be construed and applied strictly in favor of the surety, and without allowance of an implication against him.

A surety is not bound beyond the express terms of his contract.

A surety for a single individual is not liable for any association of several of which such single individual is a member, nor is a surety for several liable for one of them individually.

A provision in a bond to a city given by a principal to obtain a license, required by an ordinance, to construct sidewalks therein, that such principal shall pay for material, is valid and enforceable by any person furnishing material used in the construction of such sidewalks by such principal under such license.

Under the common law, a contractor's bond to a city for the construction of sidewalks may provide that he shall pay for all labor and material used therein.

Under section 4541, Stat. 1893 (section 3881, Rev. Laws 1910), any public officer entering into a contract, in any sum exceeding $100, for the construction of any public improvements, is required to take from the party contracted with a bond conditioned that such contractor shall pay all indebtedness incurred for labor or material furnished and used in constructing such improvements.

Under section 4541, Stat. 1893 (section 3881, Rev. Laws 1910), the fact that the municipality, instead of the state of Oklahoma is named as payee in the bond thereby required, will not invalidate such bond.

Where C. has the requisite license to engage in the business of constructing sidewalks in a city, to procure which he has paid the fee and given the bond required by the city ordinance, which bond contains a provision that he shall pay for all labor and material, although such provision is not required by such ordinance, and where C. and R. subsequently enter into a contract with such city for the construction of such sidewalks under such license and bond therefor, to which license and bond such contract specifically refers as a basis therefor, and where C. and R. thereupon give another bond with the same sureties who are upon C.'s individual bond for the faithful performance of their said contract, but which does not contain a provision that they shall pay for all labor and material, both such bonds and such contract will be interpreted together with due regard to such license and C. alone will be deemed the principal contractor in relation to such city and the public, including all persons furnishing C. and R. material used in the construction of such sidewalks, and the sureties upon such bonds will be liable as such to such persons for material so furnished and used in the construction of such sidewalks.

Commissioners' Opinion, Division No. 1. Error from Superior Court, Garfield County; Dan Huett, Judge.

Action by the Dolese Bros. Company, a corporation, against J. W. Chaney and C. E. Rickard, partners doing business as Chaney & Rickard, A. H. Reed and C. E. Dawkins, on contractor's bonds for material furnished and used in construction of sidewalks. Judgment for plaintiffs against Chaney & Rickard for amount sued for, and judgment for defendants A. H. Reed and C. E. Dawkins, who were sureties on said bonds, from which adverse judgment plaintiff brings error. Reversed and remanded.

H. Z. Wedgwood, of Enid, for plaintiff in error.

Chalmers B. Wilson, of Enid, for defendant in error Reed.

W. H. Hills, of Enid, for defendant in error Dawkins.

THACKER C.

Plaintiff in error was plaintiff and defendants in error were defendants in the trial court.

The essential facts, when not stated, are necessarily presupposed by this opinion, and will therefore be understood. There was error in the sustention of the demurrer of the defendants A. H. Reed and C. E. Dawkins to the plaintiff's petition, the pertinent allegations of said petition being, in substance, as follows:

(1) That these two defendants are sureties upon the bond of J. W. Chaney as a licensed sidewalk constructor in the city of Enid (since in May, 1910), conditioned that the said J. W. Chaney "shall perform his duties as sidewalk contractor, in compliance with the existing ordinance, and maintain all sidewalks constructed by him for a period of one year from the date of the approval of the sidewalk inspector, except against unavoidable casualty, and shall pay for all labor and material," which bond was given, and a license fee of $50 paid, as a condition precedent to such license under Ordinance No. 463 of said city; (2) that on August 27, 1910, said J. W. Chaney and C. M. Rickard entered into a contract with said city, predicated upon and referring to said license and bond as authority therefor, for the construction of certain sidewalks in said city, and undertaking to "furnish all the material, tools, and labor, and all the work * * * at his (their) own expense, according to the specifications of the city engineer, * * * and * * * with the provisions of said Ordinance No. 463, * * * the work to be first-class in every particular, * * *" and the contract further providing that the contractor "will faithfully perform the work * * * and protect the city and all property owners interested against loss or damage by reason of the negligence or improper execution of the work upon said improvements; (3) that on September 27, 1910, the said J. W. Chaney and C. M. Rickard gave the said city their bond, with the defendants A. H. Reed and C. E. Dawkins as sureties, conditioned that said Chaney & Rickard "shall well and truly perform the provisions of" their contract; (4) that plaintiff sold and delivered to said Chaney & Rickard, to be used, as the same was, in the construction of said sidewalks, certain crushed limestone at the agreed price of and worth $749.48, upon which a balance of $369.18, with interest thereon from November 11, 1910, at 6 per cent. per annum, remains unpaid; and (5) that by reason of said bonds the said A. H. Reed and C. E. Dawkins are liable to plaintiff for said balance, and are estopped from denying such liability.

It appears to be conceded that neither C. M. Rickard nor Chaney and Rickard had license to construct sidewalks in said city and that said Ordinance No. 463 required that "any person, persons, firm, or corporation desiring to engage in the business of sidewalk construction" within said city should first obtain a license upon application in writing, payment of $50 as a fee, and giving a bond in the sum of $1,000, which bond was required by said ordinance (in accord with Sess. Laws 1907-08, p. 171; section 623, Rev. Laws 1910) to be conditioned as said Chaney bond was, except that the italicized provision was not required by said ordinance...

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