McFarland v. Rogers

• Court: Maine Supreme Court
• Writing for the Court: THAXTER, Justice.
• Citation: McFarland v. Rogers, 134 Me. 228, 184 A. 391 (Me. 1936)
• Decision Date: 17 April 1936
• Parties: McFARLAND, City Treasurer v. ROGERS et al.

184 A. 391

McFARLAND, City Treasurer

v. ROGERS et al.

Supreme Judicial Court of Maine.

April 17, 1936.

Report from Superior Court, Penobscot County.

Action of debt by Melvin F. McFarland, as Treasurer of the City of Ellsworth, for benefit or use of L. C. Tyler & Sons Company, Incorporated, against Manzie I. Rogers and the Standard Accident Insurance Company of Detroit, Michigan. On report from the superior court.

Judgment for plaintiff.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

James M. Gillin, of Bangor, for plaintiff.

Fellows & Fellows, of Bangor, for defendants.

THAXTER, Justice.

This action of debt was instituted by L. C. Tyler & Sons Company, Inc., in the name of the plaintiff as treasurer of the city of Ellsworth, as obligee on a contractor's bond. It is brought against the principal and surety, and is before us on report on an agreed statement of facts with a stipulation that, if the plaintiff is entitled to recover, judgment shall be entered for the plaintiff for the account of

L. C. Tyler & Sons Company, Inc., in the sum of $1,000 with interest from March 1, 1934.

The principal on the bond, Manzie I. Rogers, entered into a contract with the city of Ellsworth for the construction of a sewer. The bond in question was given to assure the fulfillment of the contract. The defeasance clause reads as follows:

"The condition of this obligation is such, that, if the Principal designated as Contractor in the contract dated June 21, 1933 entered into between the City of Ellsworth, Maine, and Manzie I. Rogers, shall faithfully perform the contract on his part, and satisfy all claims and demands incurred for the same and shall pay all bills for labor, equipment, and all material except pipe, and for all other things contracted for or used by him in connection with the work contemplated by said contract, and shall fully reimburse the obligee for all outlay and expense which the obligee may incur in making good any default of said Principal, then this obligation shall be null and void; otherwise it shall remain in full force and effect."

The contract provides that the specification shall be a part of it. These specifications, among other things, provide:

"The Contractor shall maintain such insurance as will protect him from claims under Workmen's Compensation acts and from any other claims for damages for personal injury, including death, which may arise from operations under this contract, whether such operations be by himself or by any sub-contractor, or anyone directly or indirectly employed by either of them."

L. C. Tyler & Sons Company, Inc. supplied to the contractor two policies of insurance, a public liability policy of the London Guarantee & Accident Company, Ltd., and a workmen's compensation policy in the same company. These were the policies required by the contract of Rogers with the city of Ellsworth. The premiums on these have not been paid.

The sole question is whether the surety on the bond is liable for these premiums. The defendant claims that there is no liability, first, because the insurance coverage was a condition precedent to the awarding of the contract and hence the premiums therefor cannot be regarded...