Fidelity & Deposit Co. of Maryland v. Charles Hegewald Co.
| Decision Date | 12 October 1911 |
| Citation | 139 S.W. 975,144 Ky. 790 |
| Parties | FIDELITY & DEPOSIT CO. OF MARYLAND v. CHARLES HEGEWALD CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.
Action by the Charles Hegewald Company against the Fidelity & Deposit Company of Maryland. From a judgment for plaintiff defendant appeals. Affirmed.
Fairleigh Straus & Fairleigh, for appellant.
Kohn Baird, Sloss & Kohn, for appellee.
In the fall of 1908 the Weber Company, a Chicago corporation, entered into a contract with the commissioners of sewerage of the city of Louisville, by which it undertook to construct for the commissioners section D of the system of sewers contemplated by said commissioners, and it executed to the commissioners a bind for the faithful performance of its contract with the Fidelity & Deposit Company of Maryland as surety. Among other things, it was stipulated in the bond that the Weber Company "shall pay for all labor performed or furnished and for all materials used in the carrying out of said contract." In the course of its work, and in order to enable it to speedily carry out its contract, the construction company caused to be placed on the ground, for use in excavating for and in building the sewer, certain machines, to wit, a clam shell digger, locomotive crane, concrete mixer, locomotive crane boiler, and sand dryer. After having been used for some time, these machines became out of repair, and the Charles Hegewald Company was employed by the construction company to repair them and replace certain worn out parts thereof, so that they could be used in the completion of the work. The cost of this work so done upon the machines amounted to $354.31, which sum remained unpaid. Thereafter the Weber Company became financially embarrassed, abandoned its work, made an assignment for the benefit of its creditors, and its surety took possession of and completed the work as provided for in the contract. The assignee of the construction company instituted a suit for the settlement of the assigned estates. Among the claims presented was that of the Charles Hegewald Company for the services rendered as above indicated. The surety, the Fidelity & Deposit Company of Maryland, demurred to the claim of the Hegewald Company, which demurrer was overruled; and a judgment was entered against the Fidelity & Deposit Company for the amount of the Hegewald Company's claim. From that judgment the Fidelity & Deposit Company of Maryland prosecutes this appeal.
It is conceded by the appellant that the form of the bond executed by it is such that it is not necessary for those who supplied materials or furnished labor to the Weber Company to first establish a mechanic's lien before recovery on the bond could be had. While the bond does not require that a mechanic's or materialisms lien should be established before a claim could be asserted against the surety, it is apparent that the surety would not be liable for any claim for services rendered or material furnished which the person so rendering such service or furnishing such material could not take out a mechanic's or materialman's lien for. The test, then, of the correctness of the ruling of the trial court in this, is, Was the service rendered by appellee such a service as it would have been entitled to have asserted a mechanic's lien for? If so, the...
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