Missouri State Highway Com'n v. Coopers Const. Service Co.
| Decision Date | 26 January 1925 |
| Docket Number | (No. 3606.) |
| Citation | 268 S.W. 701 |
| Parties | MISSOURI STATE HIGHWAY COMMISSION, to Use of ONSTAD v. COOPERS CONST. SERVICE CO. et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Texas County; W. E. Barton, Judge.
Action by the Missouri State Highway Commission, at the relation and to the use of Ralph Onstad, against Coopers Construction Service Company and another. Judgment for plaintiff, and defendants appeal. Reversed.
Hiett & Impey, of Houston, and Leahy, Saunders & Walther, of St. Louis, for appellants.
Lamar, Evans & Lamar, of Houston, for respondent.
This is a suit on a road contractor's bond. The cause was tried before the court without a jury; plaintiff recovered; and defendants appealed.
Defendant Coopers Construction Service Company of St. Louis entered into a contract with the Missouri state highway commission to construct 3.7 miles of road in Texas county as per specifications, and for the faithful performance of this contract gave its bond to the highway commission with the defendant Hartford Accident & Indemnity Company as surety thereon. The Coopers Construction Service Company, the original contractor, sublet to Ludolf M. Hanson Company of Wisconsin the placing of the gravel on said road. Onstad was the representative of the subcontractor, and was foreman in charge of the work throughout the time said subcontractor was on the job, and employed all labor and purchased the gravel and necessary material to carry out the contract of the subcontractor. Onstad was not paid in full for his services, and brought this suit on the original contractor's bond to recover $720, the balance alleged to be due him.
Among the conditions of the bond sued on is one providing that the original contractor, the Coopers Construction Service Company, "shall pay all lawful claims for material furnished or labor performed in the construction of said highway," and it is on this condition " and on the statute that Onstad bases his cause. We deem it unnecessary to consider any of the assignments except the refusal of defendant's peremptory declaration at the close of the case. Defendants make the point that the character of service rendered by Onstad should not be construed to be embraced within the meaning of the word "labor" as used in the statute and in the bond. Section 1040, R. S. 1919, applicable to the bond at bar, provides that it "shall be conditioned for the payment of material used in such work and for all labor performed in such work, whether by subcontractor or otherwise." Section 1041, R. S. 1919, provides that "every person furnishing material or performing labor, either as an individual or as a subcontractor for any contractor," has a right of action on the bond required by section 1040.
In Kansas City, to Use of Mullins, v. McDonald, 80 Mo. App. 444, it appears that McDonald entered into a contract with Kansas City to build a sewer. McDonald, as required by the city charter, contracted "to pay for the work and labor of all laborers and teamsters, teams and wagons employed on the work, and for all materials used therein." The performance of McDonald's contract was guaranteed by Russell and Wyman, ,also defendants in the case. McDonald sublet to Mullins the brick work, laterals, etc. Mullins was not paid in full, and he had not paid the laborers he had employed. The suit was brought in the name of the city to the use of Mullins and the laborers to recover the respective amounts alleged to be due them for work on the sewer, and the suit was based on the charter and on McDonald's contract "to pay for the work and labor of all laborers," which covenant ...
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