Faurote v. State, ex rel. Gordon
| Decision Date | 20 April 1887 |
| Docket Number | 12,437 |
| Parties | Faurote et al. v. The State, ex rel. Gordon |
| Court | Indiana Supreme Court |
From the Henry Circuit Court.
The judgment is reversed, with costs.
J. A New and J. W. Jones, for appellants.
D. S Morgan and H. E. Barrett, for appellee.
On the 30th day of July, 1883, Francis M. Faurote and Lewis L. Brown, as principals, and W. H. Lewis, D. M. Brown and J. H. Cranor, as sureties, executed their joint bond, in the penal sum of five thousand dollars, payable to the board of commissioners of Rush county. The bond recites that the principals therein named had been awarded the contract for the construction of a certain gravel road in Rush county, and that they had entered into a written agreement with the engineer and superintendent, appointed by the board, to complete the work, according to certain plans and specifications, within a specified time. The bond was to be void if the work was completed according to the contract; otherwise to be in full force.
This was a suit upon the bond to recover for work and labor alleged to have been performed for the contractors.
The complaint alleged that the board of commissioners of Rush county, acting in pursuance of law, had ordered the construction of the gravel road described in the bond, and being about to authorize the engineer and superintendent named to enter into a written contract with Faurote & Brown, for the construction of the work, that the bond was thereupon executed, a copy of which is exhibited with the complaint.
It is alleged that owing to a mistake, the bond was made payable to the board of commissioners, instead of to the State of Indiana, and that it was not in terms conditioned, as the law required, that the principals therein named should promptly pay all debts incurred in the prosecution of the work, for labor, material, board of laborers, etc.
The complaint avers that the contractors, while executing the work, became indebted to the relators for work and labor, payment of which had been duly demanded and refused.
The first objection made to the complaint is, that it does not aver in terms that Faurote & Brown ever entered into a contract with any proper person to construct the gravel road.
It is averred in the complaint that the commissioners of Rush county, being about to authorize Thomas J. Newkirk, who had been appointed engineer and superintendent of the work, to enter into a contract for the construction of the work with the principals named therein, the bond in suit, a copy of which is filed with the complaint, was executed. It appears from the face of the bond, that the consideration upon which it was executed was, that Faurote & Brown had been awarded the contract, and had entered into a written agreement for the construction of the gravel road. Having proceeded, as the complaint avers they did, to construct the gravel road, after the bond was executed, it fairly appears from the complaint and the bond which is properly a part of it, that the contract for the construction of the gravel road had been, or was about to be, let to Faurote & Brown, at the time the bond was executed, and that they constructed the gravel road under the contract.
It is argued moreover, that the bond sued on was executed in pursuance of section 5095, R. S. 1881, which provides that the successful bidder for a gravel road contract shall give security for the performance of his contract. Hence it is said that section 4246 has no application to the case, and the bond could not be brought within the terms of the statute by alleging an omission in the conditions of the writing. This latter section requires that boards of commissioners before entertaining any proposition for the construction of a county work, shall require the bidder to enter into a bond payable to the State of Indiana, with at least two resident freehold sureties, which bond shall guarantee the faithful performance of the work in case it is awarded to the bidder, and that the contractor shall promptly pay all debts incurred by him in the prosecution of the work, including materials furnished and for boarding laborers. Section 4246 is a general provision, and applies to all bonds taken in connection with contracts for public works, which boards of commissioners are authorized to make.
Section 5095, found in the act concerning free turnpike roads, requires that a bidder for the construction of any part of such road shall give reasonable security for the proper performance of his contract. The other section referred to prescribes specifically the character of all bonds to be taken by county commissioners upon letting contracts for the construction of county work. To this effect are the rulings in Dewey v. State, ex rel., 91 Ind. 173, and State, ex rel., v. Sullivan, 74 Ind. 121.
The bond, having been taken in pursuance of a public statute, falls under the description of an official bond, and is subject to the provisions of section 1221, R. S. 1881. Murfree Official Bonds, section 36.
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