Fed. Sur. Co. v. St. Louis Structural Steel Co.

Decision Date09 June 1925
Docket NumberCase Number: 15440
Citation239 P. 154,1925 OK 468,111 Okla. 208
PartiesFEDERAL SURETY CO. v. ST. LOUIS STRUCTURAL STEEL CO.
CourtOklahoma Supreme Court
Syllabus

¶0 1. States--Suretyship--Liability to Materialman on Bond for Public Building.

A materialman who furnishes "shopworked" material, pursuant to an agreement with the contractor, for use in the building of a public structure, is entitled to recover for the value of the same pursuant to the contract of sale, between the contractor and materialman, on the builder's bond, executed and delivered to the state of Oklahoma under the provisions of section 7486, Comp. St. 1921.

2. Same--Separate Action Against Surety.

The liability of the principal and surety on the builder's bond executed and delivered to the state of Oklahoma, pursuant to section 7486, is joint and several, and a separate action may be maintained by the materialman against the surety upon the undertaking.

3. Same--Recovery Sustained.

Record examined; held, to support judgment in favor of the materialman on the bond.

Commissioners' Opinion, Division No. 6.

Error from District Court, Oklahoma County; Albert C. Hunt, Assigned Judge.

Action by St. Louis Structural Steel Company for debt against the Federal Surety Company on builder's bond. Judgment for plaintiff, and defendant brings error. Affirmed.

Harris, Spielman, Thomas & Harris, for plaintiff in error.

Ames, Lowe, Richardson & Cochran, for defendants in error.

STEPHENSON, C.

¶1 The St. Louis Structural Steel Company commenced its action against the Federal Surety Company on a builder's bond, for bridge material sold and delivered to V. O. Mathews, a contractor. The trial of the cause resulted in judgment in favor of the plaintiff. Defendant has perfected its appeal and assigns the following errors for the reversal of the cause: First, error of the court in overruling demurrer to plaintiff's petition; second, error of the court in overruling defendant's demurrer to plaintiff's evidence; third, error of the court in refusing to make V. O. Mathews, the contractor, and principal in the bond, a party defendant.

¶2 The board of county commissioners of Lincoln county entered into a written contract with V. O. Mathews, whereby the latter bound himself to construct certain steel bridges for the county. V. O. Mathews executed and delivered a builder's bond to the state of Oklahoma, pursuant to section 7486, Comp. St. 1921. The Federal Surety Company became a surety upon the bond for the faithful performance of its conditions.

¶3 V. O. Mathews entered into a written contract with the steel company to fabricate one of the steel bridges for the contractor. The contract provided that shipment should be within 30 days from receipt of the approved drawings, terms to be 60 days, net.

¶4 The obligation of the steel company under the contract was to furnish the steel necessary for "Bridge C, " fabricate the steel, fashion the same into a bridge, and ship to the contractor at Midlothian, Okla. An answer to a question directed to a witness of the plaintiff explains what is meant by fabrication of a steel bridge, the answer being in the following language:

"The St. Louis Structural Steel Company took the steel as it came from the mills and cut it to the proper lengths, fitted it and drilled it, put it together and fastened it in the shape of the bridge and riveted it together for bridge 'C'."

¶5 The plaintiff fabricated the steel bridge and shipped it to the destination designated by the contract. The bridge was unloaded from the railway cars upon the right of way, at a point about 150 yards from the location where the plans and specifications designated that the bridge should be situated. Bridge "C" was one of the several bridges which Mathews contracted to build in Lincoln county. Certain litigation was commenced between the contractor and board of county commissioners, during the process of the completion of the several bridges. Certain taxpayers intervened in the causes, which were finally settled and compromised. It appears that Mathews took judgment against the county for some of the bridges which were completed and for the steel involved in this action. It appears that the steel fabricated and shipped to the contractor for bridge "C" was lying on the ground, where it was unloaded from the cars, at the time judgment was taken by Mathews against the county for the bridges and steel, and was there on the ground at the time this action was tried.

¶6 The surety company makes the following point: That the materialman in this case cannot recover upon the builder's bond for the reason that the fabricated bridge did not find its way into a completed structure upon the site provided for by the plans and specifications.

¶7 The disposition of the question as made by the surety company depends upon the construction to be placed upon section 7486, supra, and the conditions of the bond as sued on in this action. Section 7486, supra, is in the following language:

"Whenever any public officer shall, under the laws of the state, enter into contract in any sum exceeding one hundred dollars, with any person or persons, for the purpose of making any public improvements, or constructing any public buildings or making repairs on the same, such officer shall take from the party contracted with, a bond with good and sufficient sureties to the state of Oklahoma, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvements."

¶8 The conditions of the bond sued on in this action are in the following language:

"Now, therefore, if said principal shall well and truly pay or cause to be paid all sums of money due or which may hereafter become due for any and all labor and material employed and used in the construction of said work under said contract then this obligation shall be void; otherwise to remain in full force and effect."

¶9 The provisions of the statutes refer to that indebtedness incurred for labor and material furnished in the construction of a public building. The condition of the bond refers to labor and material employed and used in the construction of the public building involved in this case. There can be but little difference, if any, between the phraseology of the statutes and that of the bond sued on.

¶10 The phrase "furnished in the construction of said building," as used in the statutes, is not substantially different from the phrase "in the construction of said work under said contract," as used in the condition of the bond sued on. The phrase, as used in the condition of the bond and last referred to, has reference to the construction of the bridge, according to the contract entered into between the contractor and the board of county commissioners. The particular point made by the plaintiff in error in this respect is that the material must be used in a completed structure in order to give the materialman a right of action on the builder's bond. Neither the statutes nor the condition of the bond expressly provide that the material should be used in a "completed structure."

¶11 The main principle supporting a mechanic's lien for material sold and delivered to the contractor, as against the owner of the structure, is that the owner has set in operation a contract for an improvement which results in enhancing the value of his premises. Although there is a lack of privity of contract between the owner of the premises and the materialman who furnished material to the builder, under a contract with the latter, it is said that the benefits accruing to the owner, through the enhancement of his premises, will support the lien against his premises. The right of action between the materialman...

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7 cases
  • U.S. Fid. & Guaranty Co. v. Cagg
    • United States
    • Oklahoma Supreme Court
    • October 19, 1937
    ...aforesaid statute is not confined to labor and materials for which a lien ordinarily could be claimed. Federal Surety Co. v. St. Louis Structural Steel Co., 111 Okla. 208, 239 P. 154. But, as said in Lohr & Trapnell v. Johns-Manville Co., 77 Okla. 6, 185 P. 526:"Materials used in the constr......
  • Fuller v. Brooks
    • United States
    • Oklahoma Supreme Court
    • March 2, 1926
    ...There is a distinction, to some extent, between the principles applying in the respective cases. Federal Surety Co. v. St. Louis Structural Steel Co., 111 Okla. 208, 239 P. 154. The surety company and the defendants contend that they are not liable for the oil and gas used by the trucks in ......
  • Eagle Oil Co. v. Altman
    • United States
    • Oklahoma Supreme Court
    • January 31, 1928
    ...to labor and material furnished which would be lienable under the materialmen's and mechanics' lien law. Federal Surety Co. v. St. Louis Structural Steel Co., 111 Okla. 208, 239 P. 154; Franzen v. Southern Surety Co., supra; United States v. American Surety Co., 200 U.S. 197, 26 S. Ct. 168,......
  • Federal Sur. Co. v. St. Louis Structural Steel Co.
    • United States
    • Oklahoma Supreme Court
    • June 9, 1925
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