Indemnity Ins. Co. v. Portsmouth Ice, Coal & Bldg. Mat. Co.

• Decision Date: 21 May 1930
• Docket Number: 22151,22160
• Citation: 172 N.E. 152,122 Ohio St. 439
• Parties: Indemnity Ins. Co. Of North America v. The Portsmouth Ice, Coal & Building Material Co.
• Court: Ohio Supreme Court

172 N.E. 152

122 Ohio St. 439

Indemnity Ins. Co. Of North America v. The Portsmouth Ice, Coal & Building Material Co.

Nos. 22151 , 22160

Supreme Court of Ohio

May 21, 1930

Suretyship - Contract for public building or improvement - Section 2865-1, General Code - Labor performed or material furnished in construction - Lumber for concrete forms not covered by bond - But cost of hauling materials covered.

Mr Phil S. Bradford and Mr. William J. Meyer for Indemnity Insurance Company of North America.

Messrs Bannon & Bannon and Mr. John F. Johnley, for the Portsmouth Ice, Coal & Building Material Company.

Mr Horace L. Small, for the H. Leet Lumber Company.

BY THE COURT.

These two cases embrace the same principles and may be disposed of in one opinion. In one case lumber was furnished with which to construct forms to hold concrete in place until it became set, the lumber then to be removed and retained by the contractor. In that case the trial court held that the lumber was material entering into the construction of the structure and was covered by the indemnifying bond given to insure the performance of the work and the payment for the material and labor entering into the structure. The Court of Appeals reversed this decision of the trial court, holding that the lumber did not become an integral part of the structure, and for that reason could not be covered by the bond.

In the other case, materials were furnished that went into the structure, and, associated with the furnishing of the materials, was a bill for haulage, amounting to $450, in round figures. In that case the trial court held that the haulage could not be separated from the materials that went into the structure, and could be included in the bond. This decision was affirmed by the Court of Appeals; the haulage being held as an expenditure properly covered by the indemnifying bond.This court is of the opinion that the Court of Appeals was correct in both decisions. Referring to the lumber that was furnished with which to build the forms to retain the concrete, it may be said that if this was re-enforced concrete the metal rods embedded in the concrete of necessity become a part of the structure, because they remain in the completed structure. The lumber forms which hold the re-enforced concrete in position while it sets in permanent form are a very different class of material, do not become a part of the structure, and may be removed and used on many structures...