Fogarty v. Davis

• Decision Date: 27 August 1924
• Docket Number: 24035
• Citation: 264 S.W. 879,305 Mo. 288
• Parties: THOMAS FOGARTY et al., Trading Under Firm Name of SANITARY PLUMBING & HEATING COMPANY, Appellants, v. GEORGE E. DAVIS et al
• Court: Missouri Supreme Court

264 S.W. 879

305 Mo. 288

THOMAS FOGARTY et al., Trading Under Firm Name of SANITARY PLUMBING & HEATING COMPANY, Appellants, v. GEORGE E. DAVIS et al

No. 24035

Supreme Court of Missouri

August 27, 1924

Transferred from Springfield Court of Appeals.

Affirmed.

M H. Galt for appellants.

(1) Merely denominating a bond as "Statutory Bond" does not make it a statutory bond or a common-law bond, thereby giving plaintiffs a right of action thereon. (a) A bond, not good as a statutory bond, may yet be held good as a common-law bond, but in that event, it creates no liability beyond its express terms. Wimpey v. Evans, 84 Mo 144. (b) Where there is part or substantial compliance with the statute, i. e., an apparently attempted compliance with the statutory requirements, the statute has been, in some cases, read into the bond, supplementing and explaining the partial compliance. Zellers v. Surety Co., 210 Mo. 86; Newton v. Cox, 76 Mo. 352; Flint ex rel. v. Young, 70 Mo. 221; State to use v. Berry, 12 Mo. 377; Henry County v. Salmon, 201 Mo. 136. (2) The failure to require the form of bond prescribed by Sec. 1040, R. S. 1919, renders the individuals composing the school board, personally liable for consequent damage to sub-contractor. Burton Machinery Co. v. Ruth, 196 Mo.App. 459; Evans v. Howard Fire Brick Co., 204 S.W. 832; Austin v. Ransdell, 230 S.W. 334. The construction placed on the law before its repeal demonstrates the object of the Legislature. Press Brick Co. v. School Dist., 79 Mo.App. 665. The amendment of the law in 1911 emphasizes the intent of the Legislature. Laws 1911, p. 106.

Lamar & Lamar for respondents.

(1) The plans, specifications, contract and bond will all be read and construed together. Plaintiff herein is conclusively charged with knowledge of what kind of a heating plant the plans and specifications required and could not recover in any event where there is a substantial failure to comply with these plans and specifications. (2) The bond set out in the record is a statutory bond. Yet if the bond was in the identical language of the statute, and plaintiff was suing on that bond he could not recover, because he has not complied with the contract. The specifications, and the plans and details are a part of the contract and a part of the bond. This is elementary, and if he could not have recovered on any kind of a bond, then plaintiff is not damaged, and certainly is not entitled to recover from these defendants because the first thing to show in order to recover from the defendants is that plaintiff is damaged. (3) As against a surety for hire, a contract is construed most strictly against the company, and the same construction is applied as is applied to insurance contracts. The company prepares the contract, or other bond, for hire and they are classed as insurance contracts. 1 Joyce on Insurance (2 Ed.) p. 820, sec. 339a, 339b; Lackland v. Henshaw, 256 Mo. 133; Roark v. Trust & Safe Deposit Surety Co., 130 Mo.App. 401; State ex rel. v. Surety Co., 187 Mo.App. 39, 50; State ex rel. v. Cochrane, 264 Mo. 581; City of Topeka v. Federal Union Surety Co., 213 F. 958, 962. (4) Where a bond is given in obedience to a statutory requirement the conditions of such statute will be read into and become a part of the bond. 9 C. J. p. 34, sec. 56; Jackson County v. Enright, 198 Mo.App. 527, 531; Board of Education v. Fidelity & Guaranty Co., 155 Mo.App. 109; Henry County v. Salmon, 201 Mo. 136, 163; Kansas City v. Youman, 213 Mo. 151; State ex rel. v. Rubber Co., 149 Mo. 181; Zellars v. National Surety Co., 210 Mo. 86. (5) The language used in this contract, that the contractor will "provide such material," means that he will pay for them. Greenbay Lumber Co. v. Independent School District, 90 N.W. 505; Callan v. Empire State Surety Co., 129 P. 798; Empire State Surety Co. v. Lindenmeier, 131 P. 437; School District v. McClure, 224 S.W. 831; School District v. Butler County, 234 S.W. 1017.

OPINION

James T. Blair, P. J.

This cause was certified to this court by the Springfield Court of Appeals, because of conflict of its decision herein with a decision of the Kansas City Court of Appeals.

Appellants are co-partners and began this action against respondents, who constitute the board of directors of the Cabool School District, to recover $ 2988.87, for which they allege the directors are personally liable on account of their failure to take the contractor's bond required by Section 1040, Revised Statutes 1919.

In May, 1918, the respondents, in their official capacity, entered into a contract with Howard A. Mann, whereby, among other things, he agreed to install a heating plant and plumbing system in a school building in course of construction for the district. Thereafter appellants, by sub-contract, agreed with Mann that they would furnish and install the plumbing and heating plant. This they did. They allege they relied upon the assumption that Mann had given bond as the statute required. It is alleged Mann is insolvent and that respondents failed to require him to give bond as provided by the statute, and they ask damages as for neglect of a ministerial duty by respondents. They pray judgment for $ 2988.87, and interest.

The contract with Mann contains no express provision that the contractor shall pay for all materials and labor. It does provide that "the contractor shall and will provide all materials and perform all the work for the erection and completion of a high school building, and such other work as set forth in the specifications for same," etc. It also authorizes respondents to provide labor or materials or take over the construction of the building in case of certain defaults of the contractor. The evidence shows the heating plant installed is not of the kind prescribed by the contract. Evidence was offered tending to show this was due to conditions which rendered it impossible to comply with the contract in this respect. The bond was duly executed by the contractor, as principal, and the United States Fidelity & Guaranty Company as surety. It is conditioned that Mann shall perform all his contract obligations and shall keep the "obligee harmless and indemnified from and against all and every claim, demand, judgment, lien, cost and fee of every description, . . . and shall re-pay said obligee all sums of money said obligee may pay to other persons on account of work and labor done or materials furnished on or for said contract" and shall pay all damages or forfeitures sustained for any reason by the principal's failure properly to execute his contract. These conditions are long, but this is a sufficient epitome for present purposes.

It will be noted, as the Court of Appeals points out, that this bond is in a form appropriate for use to secure the performance of a building contract between a contractor and a private individual. It is headed "Statutory Bond," and the obligee is the "Cabool School District." It is not and could not well be contended that the purpose of the parties was other than to give a bond under the statute to which reference has been made. The use of the wrong printed form seems to have been an inadvertence.

I. The statute (Secs. 1040, 1041, R. S. 1919) provides that school boards in contracting for public work shall require the contractor, with sufficient sureties, to execute a bond in sufficient amount, which, among other conditions, "shall be conditioned for the payment of material used in such work and for all labor performed in such work, whether by subcontractor or otherwise." Sub-contractors are expressly given a right of action on the bond.

It is contended the bond given is so far from compliance with this statute that appellants cannot maintain an action on it and therefore, it is equivalent to the taking of no bond at all, so far as appellants' rights are concerned, and, as a consequence, this action lies. The general rule is that an officer's neglect of a ministerial duty imposed for the benefit of individuals is actionable. There is authority for the proposition that the omission to incorporate in a writing a provision which a statute specifically requires an officer to incorporate, is the failure to perform a ministerial duty. In this case respondents contend the bond taken will support an action by appellants. If this is true, this judgment must be affirmed. The rule in this State is that in construing a statutory bond the provisions of the statutes must be read into it and construed as a part of it. "When parties execute a statutory bond they are chargeable with notice of all provisions of the statute relating to their obligation, and those provisions are to be read into the bond as its terms and conditions. . . . These provisions are a part of the bond of which both principal and surety must take notice." [State ex rel. v. Rubber Mfg. Co., 149 Mo. l. c. 212.] "In order to get at the scope of this bond the statute pertaining to the subject-matter of county depositaries must be read into the bond, and the obligors must be held to contract with a view to those statutes (citing 149 Mo. l. c. 212). This does not strike down...