Empire State Sur. Co. v. City of Des Moines

Citation152 Iowa 531,132 N.W. 837
PartiesEMPIRE STATE SURETY CO. v. CITY OF DES MOINES ET AL.
Decision Date24 October 1911
CourtUnited States State Supreme Court of Iowa
OPINION TEXT STARTS HERE

Supplemental opinion.

For former opinion, see 131 N. W. 870.

McCLAIN, J.

In a petition for rehearing in behalf of the Brown-Hurley Hardware Company and the Globe Machinery & Supply Company, our attention is called to the fact that on the cross-appeals of these two companies we have failed to notice the contention that the trial court erred in not rendering judgment against the Empire State Surety Company on its bond in the full amount claimed by them, respectively.

As to the Brown-Hurley Company, the record shows that, while the entire amount of its claim was $748.90, $257.66 of that amount was for material and supplies furnished to the Marsh Bridge Company and actually used in the completed bridge or the falsework thereunto pertaining, while the balance of the claim was for labor and material furnished to said contracting company in the form of equipment or repairs thereto used in the performance of the contract, but not going into the completed bridge or the falsework. The entire claim of the Globe Machinery & Supply Company was for material furnished in the form of equipment or repairs thereto. The court rendered judgment in favor of the Brown-Hurley Company against the Empire State Surety Company on its bond for $265.39, being the amount of the items for material and supplies which went into the completed bridge or into the falsework with a small addition of interest, and disallowed, as against the surety company, the balance of its claim and the entire claim of the Globe Machinery & Supply Company. In the contract between the Marsh Bridge Company and the city of Des Moines for the construction of the bridge, the former agreed to pay all just claims against it for material furnished in the performance of the contract, and in the bond of the Empire State Surety Company furnished by the bridge company to the city in accordance with the terms of the contract the Empire State Surety Company became bound to pay all claims for labor and material furnished for said work. The contention is that the claims disallowed were for material furnished the bridge company, which was so furnished to enable that company to perform its contract. The lower court, however, drew a distinction between material which went into the completed bridge or into the falsework which was erected in the construction of such bridge and destroyed on its completion and the material and supplies which became a part of the machinery and equipment used by the bridge company in the construction of the bridge. This distinction was, we think, well taken. It is recognized in cases relating to mechanics' liens and contractors' bonds. While material furnished and consumed in prosecuting the work is included, such as powder for blasting and lumber employed in constructing falsework or scaffolding (Schaghticoke Powder Co. v. Greenwich, etc., R. Co., 183 N. Y. 306, 76 N. E. 153, 2 L. R. A. [N.S.] 288, 111 Am. St. Rep. 751;Hercules Powder Co. v. Knoxville, L. & J. R. Co., 113 Tenn. 382, 83 S. W. 354, 67 L. R. A. 487, 106 Am. St. Rep. 836;Giant Powder Co. v. Oregon P. R. Co. [C. C.] 42 Fed. 474, 8 L. R. A. 700;Rapauno Chemical Co. v. Greenfield & N. R. Co., 59 Mo. App. 6), machinery, tools and equipment, constituting the plant, and material furnished...

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    • Wyoming Supreme Court
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    ...Oosting, 230 Mich. 1, 203 N.W. 131; U.S. v. Morgan, 111 F. 474; Empire State Surety Co. v. City of Des Moines, 152 Iowa 531, 131 N.W. 870, 132 N.W. 837; Standard Boiler Works National Surety Co., 71 Wash. 28, 127 P. 573, 43 L. R. A. N. S. 162; Pierce Oil Corp. v. Parker, (Ark.) 168 Ark. 400......
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    ...even though worn out, are of such character that if not consumed can be used on other work. Empire Co. v. Des Moines (Io.), 131 N.W. 877, 132 N.W. 837; Kansas City v. (Mo.), 112 S.W. 225; Thomas v. Commonwealth (Mass.), 102 N.E. 428; May v. Thomas Co. (Ala.), 14 So. 768; Construction Co. v.......
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