Kirby & McGuire, Inc. v. Board of Ed. of Cecil County, for Use of Monumental Brick & Supply Co.

• Decision Date: 18 June 1956
• Docket Number: No. 209,209
• Citation: 123 A.2d 606,210 Md. 383
• Parties: KIRBY and McGUIRE, Incorporated, and Indemnity Insurance Company of North America, v. BOARD OF EDUCATION OF CECIL COUNTY, for the Use of The MONUMENTAL BRICK and SUPPLY COMPANY, and body corporate, and The Monumental Brick and Supply Company, a body corporate.
• Court: Maryland Court of Appeals

Page 383

210 Md. 383

123 A.2d 606

KIRBY and McGUIRE, Incorporated, and Indemnity Insurance Company of North America, v. BOARD OF EDUCATION OF CECIL COUNTY, for the Use of The MONUMENTAL BRICK and SUPPLY COMPANY, and body corporate, and The Monumental Brick and Supply Company, a body corporate.

No. 209.

Court of Appeals of Maryland.

June 18, 1956.

Kenneth C. Proctor, Towson (H. Anthony Mueller, Towson, on the brief), for appellants.

Harrison L. Winter and Seymour O'Brien, Baltimore, for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

Kirby and McGuire, Incorporated, was the general contractor for alterations and additions to the High School at North East, Maryland, ordered by the Board Of Education of Cecil County. One Snyder was employed by the general contractor under sub-contract to do the brick and masonry work. Snyder purchased brick for the job from the Monumental Brick and Supply Company, performed the sub-contract and died without having paid for the bricks. Monumental, in the role of beneficiary of a bond given for the primary protection of the Board of Education of Cecil County by Kirby and McGuire, Incorporated, as principal, and Indemnity Insurance Company of North America, as surety, sued as equitable plaintiff for judgment against the obligors of the bond for the price of the bricks furnished to Snyder. The declaration, in a separate count, sought to impose liability on Kirby and McGuire, Incorporated, aside from its execution of the bond, because of its agreement, for a valid consideration, to pay Monumental for the bricks, alleged to have been made after Snyder's death. The defendants prayed oyer of the bond and all contract documents referred to in the bond and after it had been granted, demurred to the declaration. The demurrer was overruled, the defendants indicated that they would not plead and the trial court granted summary judgment against both the general contractor, the principal on the bond, and the bonding company, the surety. We find it unnecessary to pass on the claim of agreement to pay in view of our conclusion that Monumental is entitled to recover on the bond.

The bond recited the execution of a written construction contract between Kirby and McGuire, Incorporated, the contractor and the Board of Education of Cecil County as owner, adding that said contract 'is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein for the purpose of explaining but not of varying or enlarging the obligation.' The condition of the obligation was stated to be: 'That if the above bounden Principal shall well and truly keep, do and perform, each and every, all and singular, the matters and things in said contract set forth and specified to be by the said Principal kept, done and performed at the time and in the manner in said contract specified * * *, then this obligation shall be void; * * *.' The contract in turn incorporated in it by reference the 'General Conditions of the Contract', the 'Specifications' and the 'Drawings', stating that they, together with the basic contract itself, form the whole contract and were 'as fully a part of the Contract as if hereto attached or herein repeated.' The enumeration of the Specifications and Drawings show them to include the 'Advertisement', the 'Instructions to Bidders', the 'Form of Proposal', and 'Special Conditions'. It has been settled by the decisions of this Court that a bond of the kind here involved is to be regarded and construed as any other simple written contract. Hartford Accident & Indemnity Co. v. W. & J. Knox Net & Twine Co., 150 Md. 40, 45, 132 A. 261; Green, etc. Women's Hospital v. U. S. F. & G. Co., 177 Md. 615, 618, 11 A.2d 257. It is clear, too, that by virtue of the incorporation by reference of the contract into the bond and of the other documents into the contract, the bond and all of the documents are to be read and construed together, as if set forth in the bond. Lange v. Board of Education, 183 Md. 255, 261, 37 A.2d 317; Ray v. William G. Eurice & Bros., 201 Md. 115, 93 A.2d 272; Gaybis v. Palm, 201 Md. 78, 93 A.2d 269. Compare United States F. & G. Co. v. Housing Authority, 206 Md. 379, 382, 111 A.2d 658.

The general conditions, a part of the basic construction contract, include this provision: 'Art. 9. Materials, Appliances, Employees.--Unless otherwise stipulated, the Contractor shall provide and pay for all materials, labor, water, tools, equipment, light, power, transportation and other facilities necessary for the execution and completion of the work.' The appellees say that this flat requirement of payment for all materials necessary for the completion of the job, read as part of the bond, is one of 'the matters and things in said contract set forth and specified to be by said Principal kept, done and performed' guaranteed by the bond. The appellants counter by saying that the obligations imposed on the contractor by Art. 9 are only as between him and the owner, meaning that the owner thus is not required directly to furnish and pay for anything unless expressly stipulated, and that the generality of the obligation of the contractor is limited by other provisions of the contract documents, which clearly show that the contractor must pay only for such materials and labor as he directly contracts for.

The appellees say the case is controlled by two cases where the materialman was allowed to recover. One is Board of Education v. Lange, ...