Griffith v. Stucker
| Decision Date | 06 December 1913 |
| Docket Number | 18,428 |
| Citation | 136 P. 937,91 Kan. 47 |
| Parties | W. E. GRIFFITH, Appellant, v. N. E. STUCKER et al., Appellees |
| Court | Kansas Supreme Court |
Decided July, 1913
Appeal from Franklin district court; CHARLES A. SMART, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. SURETYSHIP -- Indemnity Bond of Public Contractor -- Valid under the Statute -- Available to Laborers and Materialmen of Subcontractor. After the work of improving streets of a city had been completed, but before formal acceptance by the city the contractor gave a bond with sureties to the state of Kansas conditioned that if he should pay all indebtedness incurred by him for labor and material furnished in making the improvements the bond should be void, otherwise to be in full force. The contractor's contract with the city provided that he should give the bond required by chapter 179 of the Laws of 1887. The prescribed condition of such a bond is that the contractor shall pay all indebtedness incurred for labor or material furnished in making public improvements. The bond which was given was not filed for record with the clerk of the district court as the statute requires, and the improvements were actually made by a subcontractor who failed to pay his laborers and materialmen. Held:
A. The bond was given pursuant to a statutory duty and not simply on a past consideration, and the delay in giving it did not affect its character.
B. The terms of the bond are to be interpreted as intended to accomplish the purpose of the statute, which is to protect laborers and material men who make contributions to public works.
C. Labor and material furnished by the subcontractor were in contemplation of the statute and the bond furnished by the contractor.
D. The provision for filing the bond was inserted in the statute for the benefit of laborers and materialmen. The obligation was complete when the bond was executed and delivered to the city.
E. The subcontractor's laborers and materialmen may resort to the bond as security for the indebtedness due them.
2. Subcontractor's Bond to Contractor--Available to Laborers and Materialmen Not Apprised of it. The contractor took from the subcontractor a bond with surety, conditioned that the subcontractor would pay all bills for labor and material used in the performance of the subcontract. Held:
A. The subcontractor's laborers and materialmen may resort to this bond as security for the bills due them arising from the performance of the subcontract.
B. It is not necessary that such laborers and materialmen should have known of the bond and should have acted on the faith of it in order to make it available to them as security for the payment of their bills.
W. S. Jenks, and F. M. Harris, both of Ottawa, for the appellant.
F. A. Waddle, of Ottawa, for the appellees.
The city of Ottawa undertook to improve several of its streets. To that end contracts were let to N. E. Stucker. Stucker sublet a portion of the work to Lightfoot Brothers, who failed before performance. The action was brought by W. E. Griffith, who is the assignee of laborers and materialmen having claims against Lightfoot Brothers. The defendants are the obligors in a bond given by Stucker to the state of Kansas, and the surety in a bond given by Lightfoot Brothers to Stucker. The defendants recovered and the plaintiff appeals.
Chapter 179 of the Laws of 1887 (Civ. Code of 1909, §§ 661, 662) provides as follows:
Before beginning work Stucker gave a bond that he would faithfully perform the obligation of his contract according to the plans and specifications furnished by the city. No relief is sought on this bond. After work on certain streets had been fully completed according to contract, but before the city had accepted the work, the city took from Stucker a bond to the state of Kansas, conditioned as follows:
"Now, therefore, if the said N. E. Stucker shall well and truly pay all indebtedness incurred by him for labor or material furnished in the construction of said improvement according to law, then the obligation shall be void and of no effect, otherwise to be and remain in full force."
This bond was not filed with the clerk of the district court, but it covered improvements of streets included in Lightfoot Brothers' subcontract, and the plaintiff seeks the benefit of it. The court is of the opinion that it may be enforced by the plaintiff as a statutory bond.
It is said that the bond limits liability to the indebtedness incurred by the contractor alone, the language being "indebtedness incurred by him." All labor and material expended on improvements embraced in Stucker's contract were furnished by him, whether furnished directly or furnished indirectly through Lightfoot Brothers, whom he employed. Stucker's contract with the city expressly provided that he should furnish the bond to secure claims for labor and material required by chapter 179 of the Laws of 1887, and the execution of the bond to the state shows an intention to comply with the contract and with the law. The purpose of the statute was to protect the contributions of laborers and materialmen to public works. Where mechanic's liens are allowed, as upon public buildings, the statute furnishes additional security. (Comm'rs of Jewell Co. v. Manufacturing Co., 52 Kan. 253, 34 P. 741.) Where mechanic's liens are not possible, as upon street improvements, the purpose was to secure laborers and materialmen against loss by a quasi mechanic's lien, the lien being upon the bond instead of upon the property; and the language of a bond tendered in compliance with the statute will be construed as designed to accomplish the end which the legislature had in view.
The statute under consideration is analogous to the one enacted to protect laborers and others who aid in the construction of railroads, which requires railroad companies to take...
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