Mason Const. Co. v. Kosmos Portland Cement Co.

• Decision Date: 25 April 1933
• Citation: 59 S.W.2d 1016,248 Ky. 782
• Parties: MASON CONST. CO. et al. v. KOSMOS PORTLAND CEMENT CO.
• Court: Kentucky Court of Appeals

59 S.W.2d 1016

248 Ky. 782

MASON CONST. CO. et al. v. KOSMOS PORTLAND CEMENT CO.

Court of Appeals of Kentucky

April 25, 1933

Rehearing Denied May 30, 1933.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Suit by the Kosmos Portland Cement Company against the Mason Construction Company, a partnership composed of R. E. Mason and others, and against the company's surety on a bond executed to the State Highway Commission.From a judgment on a peremptory instruction for plaintiff, defendants appeal.

Reversed.

Blakey Davis & Lewis, of Louisville, for appellants.

Crawford Middleton, Milner & Seelbach and George W. Norton, Jr., all of Louisville, for appellee.

STANLEY Commissioner.

Through the process of practice, this case was and is resolved into one of liability or nonliability under a bond executed to the state highway commission or a contract between it and the principal in the bond.The facts finally became undisputed.The trial court ADjudged liability by means of a peremptory instruction to the jury, and the appeal is by the principal and surety in the bond.

The Mason Construction Company, a partnership, composed of R. E. Mason, A. H. Douglas, and L. B. Handley, hAD a contract with the highway commission to improve a part of the Tompkinsville-Scottsville roAD.A portion of that contract was sublet to ADams & Wilkerson.They in turn sublet the masonry part of their contract to C. M. Bell, doing business as C. M. Bell & Co.Under a contract with Bell & Co. alone the Kosmos Portland Cement Company sold and delivered a quantity of cement to Bell which was used on the job.That was in 1927.There remained a balance of $2,181.90 due on an open account by Bell to the cement company, and the suit is to recover it of the general contractor.Bell was not sued.

In the course of time the Mason Construction Company paid ADams & Wilkerson in full under their subcontract, and they in turn paid Bell in full for his work.Neither the Mason Construction Company nor ADams & Wilkerson hAD any notice of the unpaid cement account, nor hAD they ever been ADvised of a purpose to hold them responsible for payment of the material.When the Mason Construction Company asked for the final payment by the highway commission under their contract, they learned that a short time before (more than a year after the last cement was delivered) the cement company hAD filed a statement of the material it hAD furnished for the job and the nonpayment of the balance by Bell & Co.

It is not alleged in the pleADings that payment of the final estimate was refused by the highway commission, but it is only averred that, in consideration of its payment, the Mason Construction Company, as principals, and the Fidelity & Casualty Company of New York, as surety, executed to the highway commission the bond sued on.That bond declared the principals and surety to be bound in the penal sum of $3,000 to the "State Highway Commission for the use and benefit of the Commonwealth of Kentucky and persons, firms or corporations holding valid legal claim or claims against the principals herein or their sub-contractors for materials furnished to said principals or their sub-contractors or either of them in improving" the roAD described, "which improvements were mADe pursuant to a contract" between the principals and the commission.It was conditioned that, if payment should be mADe of "all legal claims against them (the Mason Construction Company) or any of their sub-contractors for materials furnished to them or to any of their sub-contractors for use in improving," the roAD the obligation should be null and void.It is recited that the bond was given for the purpose of enabling the principals to obtain payment in full from the commonwealth of the final estimate on the contract which was being withheld pending settlement for the payment of all material claims.

There was no consideration for this bond as between the Mason Construction Company and the Kosmos Portland Cement Company.The material hAD not been furnished or the credit extended to Bell on the faith of this instrument.Standard Oil Co. v National Surety Co.,234 Ky. 764, 29 S.W.2d 29.It is in effect simply as if A hAD promised his debtor B, "If you will pay me what you owe me I will pay C what I owe him if anything."There could be no valid claim by C under such an agreement, for it is a gratuitous engagement so far as C is concerned.His demand must rest upon some other promise or consideration.It is a settled principle of law that a promise to do what...