Klein v. Beers

Decision Date18 September 1923
Docket NumberCase Number: 14173
Citation218 P. 1087,95 Okla. 80,1923 OK 631
PartiesKLEIN v. BEERS et al.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Principal and Surety--Interpretation of Contract.

A contract of suretyship should be interpreted and the intelligible meaning of its language ascertained. It will then be construed and applied strictly in favor of the surety and without allowance of an implication against him; but this rule in no way interferes with the use of the ordinary tests by which the actual meaning and intention of the contracting parties are determined, and the same canons of interpretation which apply in the interpretation of other contracts should be applied in suretyship contracts.

2. Schools and School Districts--Building Bond -- Validity -- Action by Materialman.

Under section 3881, Rev. Laws 1910, which requires public officers when making contracts for the construction of a public building to take bonds running to the "state of Oklahoma", conditioned that the contractor shall pay all indebtedness incurred for labor and material, a bond which runs to a school district instead of the state of Oklahoma, if otherwise in conformity with the statute, is a valid, statutory bond and suit may be maintained therein by any person furnishing material used in the construction of such building.

3. Same--Construction of Bond.

A bond taken by the officers of a school district from a contractor constructing a school building, which bond runs to the school district as well as all persons who may become entitled to liens under the contract, and conditioned that the contractor will abide by and well and truly keep and perform all the covenants and agreements of the building contract and shall promptly pay and discharge all indebtedness that may be incurred by the said contractor in carrying out said contract, and which bond in conclusion contained a paragraph providing: "This bond is made for the use and benefit of all persons who may become entitled to liens under the said contract according to the provisions of law in such cases made and provided, and may be sued upon by them as if executed to them in proper person," and where the contract provided for the payment by the contractor for all material and labor, such bond is in sufficient compliance with section 3881, Rev. Laws 1910, and is not to be construed as being for the benefit of only those materialmen and laborers who might become entitled to liens.

4. Same--Obligees.

The naming of all persons who may become entitled to liens as obligees and the last paragraph of the bond, providing that those who might become entitled to liens might sue upon the bond, does not limit the terms of the bond to that class under the rule, "Expressio unius est exclusio alterius," as such clause in the bond does not include any person, for the reason that, a public building under the law not being subject to liens, those words are without force and the bond is to be interpreted as though they were omitted.

Error from District Court, Tulsa County; Albert C. Hunt, Judge.

Action by J. B. Klein, sole trader under the name of J. B. Klein Iron & Foundry Company, against Roy R. Beers, D. W. Holmes, M. A. Harrison, and the Beers Construction Company. Judgment for defendants, and plaintiff brings error. Reversed and remanded, with directions.

Shirk, Danner & Fowler, for plaintiff in error.

G. C. Spillers, for defendants in error.

COCHRAN, J.

¶1 This action was commenced by the plaintiff in error to recover against the defendants in error who were sureties on a building contractor's bond, for an amount due for material furnished to the contractor. A demurrer was sustained to the petition and an appeal taken from this order. The bond was given by defendants in error for Roy R. Beers, who had entered into a contract with the board of education of school district No. 26, Tulsa county, Okla., for the construction of an addition to the school building. The bond is in the following words:

"Know All Men by These Presents:
"That we, J. W. Holmes, and M. A. Harrison, of the city of Tulsa, county of Tulsa, state of Oklahoma, are held and firmly bound unto school district No. 26, Tulsa county, Okla., as well as to all persons who may become entitled to liens under the contract hereinafter mentioned, in the sum of $ 37,500, lawful money of the United States of America, to be paid to the said school district, and to the said parties who may be entitled to liens, their executors, their administrators and assigns; for which payment well and truly to be made, we bind ourselves, one and each of our heirs, executors and administrators, jointly and severally, firmly by these presents.
"Sealed with our seals, dated this 22nd day of May, 1918.
"The condition of this obligation is such that if the bounden Roy R. Beers, for the Beers Construction Company, his heirs, executors, administrators or assigns shall, in all things, stand to and abide by, and well and truly keep and perform the covenants, conditions, and agreements in contract hereinafter mentioned (of which this bond is a part) entered into by and between the said Roy R. Beers, doing business under the firm name of the Beers Construction Company, and the said school district, dated on the first day of October, 1917, for the construction and completion of the work or works in said district and mentioned in said contract, and shall duly and promptly pay and discharge all indebtedness that may be incurred by the said Roy R. Beers in carrying out the said contract and shall truly keep and perform the covenants, conditions, and agreements in said contract and in the within instrument contained, on his part to be kept and performed at the time and in the manner and form specified as well as all costs, including attorney's fees, in enforcing the payment and collection of any and all indebtedness incurred by said Roy R. Beers in carrying out said contract, then the above obligation shall become void; else to remain in full force and virtue. This bond is made for the use and benefit of all persons who may become entitled to liens under the said contract according to the provisions of law in such cases made and provided, and may be sued upon by them as if executed to them in proper person.
"In testimony whereof, witness the hands and seals of the said D. W. Holmes and M. A. Harrison as well as the signature of the said Roy R. Beers hereto affixed."
"D. W. Holmes (Seal)
"M. A. Harrison (Seal)
"The Beers Construction Company,
"By Roy R. Beers."

¶2 The plaintiff in error furnished material to the contractor which was used in the construction of the building and was not paid for. The only question for determination is, Does the bond render the sureties liable for the payment of the material so furnished?

¶3 In construing the terms of the bond we must bear in mind that the sureties on this bond are individuals and the bond is to be construed according to the provisions of section 1052, Rev. Laws 1910, which is as follows:

"A surety cannot be held beyond the express terms of his contract, and if such contract prescribes a penalty for its breach he cannot in any case be liable for more than the penalty."

¶4 Section 1053, Rev. Laws 1910, provides:

"In interpreting the terms of a contract of suretyship the same rules are to be observed as in the case of other contracts."

¶5 In Dolese Bros. Co. v. Chaney & Rickard, 44 Okla. 745, 145 P. 1119, we said:

"After a contract of suretyship is interpreted and the intelligible meaning of its language is ascertained, it will be construed and applied strictly in favor of the surety and without allowance of an implication against him."

--but in applying this rule of strict construction, we must have in mind what is meant by the rule, and this is clearly stated in 21 R. C. L., sec. 28, as follows:

"In brief, by strict construction of a contract of suretyship is meant that the obligation of a surety must not be extended to any other subject, to any other person, or to any other period of time than is expressed or necessarily included in it; but the rule in no way interferes with the use of the ordinary tests by which the actual meaning or intention of contracting parties are primarily determined. Despite the rule, the courts, in endeavoring to ascertain the precise terms of the contract actually made by a surety, may resort to the same aids and invoke the same canons of interpretation which apply in case of other contracts, and they are not required to put a strained construction on the plain words of a bond in order that the sureties may escape liability. What is demanded is merely that the sureties are not to be bound by implication, or beyond the extent to which they have obligated themselves in the execution of the bond."

¶6 Plaintiff in error contends that the bond under consideration was a statutory bond required by section 3881, Rev. Laws 1910, which provides:

"Whenever any public officer shall, under the laws of the state, enter into contract in any sum exceeding one hundred dollars, with any person or persons, for purpose of making any public improvements, or constructing any public buildings or making repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureties to the state of Oklahoma, in the sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvements"

--and it is contended that an action by any person furnishing material to such contractors is authorized by section 3882, which is as follows:

"Such bond shall be filed in the office of the clerk of the district court of the county in which such public improvement is to be made or such public building is to be erected; and any person to whom there is due any sum for labor or material furnished, as stated in the preceding sec
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6 cases
  • Fed. Sur. Co. v. St. Louis Structural Steel Co.
    • United States
    • Oklahoma Supreme Court
    • June 9, 1925
    ...and intentions of the parties are ascertained, the contract should be strictly confined to the intentions of the parties. Klein v. Beers, 95 Okla. 80, 218 P. 1087. ¶15 All parties concerned in the contract for the construction of the bridge, and in the making of the surety contract, must ha......
  • Am. Sash & Door Co. v. Mcgregor
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    • November 9, 1926
    ...of Lohr v. Johns-Manville Co., 77 Okla. 6, 185 P. 526, U.S. Fidelity & Guaranty Co. v. Cook, 105 Okla. 185, 231 P. 495, and Klein v. Beers, 95 Okla. 80, 218 P. 1087, the demurrer of the defendant casualty company should have been by the trial court overruled and judgment entered as against ......
  • Klein v. Beers
    • United States
    • Oklahoma Supreme Court
    • September 18, 1923
  • N.Y. Cas. Co. of N.Y. v. Wallace & Tiernan, Inc.
    • United States
    • Oklahoma Supreme Court
    • January 22, 1935
    ... ... , is not in point for the reason that in that case the bond was an ordinary contractor's bond.9 The case at bar is more akin to the Cases of Klein v. Beers, 95 Okla. 80, 218 P. 1087, and United States Fidelity & Guaranty Co. v. Cook et al., 105 Okla. 185, 231 P. 495. We think these two cases are ... ...
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