Missouri State Highway Com'n v. Coopers Const. Service Co.

• Decision Date: 31 August 1926
• Docket Number: No. 3990.,3990.
• Citation: 286 S.W. 736
• Parties: MISSOURI STATE HIGHWAY COMMISSION ex rel. and to Use of LICKING STATE BANK v. COOPERS CONST. SERVICE CO. et al.
• Court: Missouri Court of Appeals

286 S.W. 736

MISSOURI STATE HIGHWAY COMMISSION ex rel. and to Use of LICKING STATE BANK v. COOPERS CONST. SERVICE CO. et al.

No. 3990.

Springfield Court of Appeals. Missouri.

August 31, 1926.

Appeal from Circuit Court, Texas County; W. E. Barton, Judge.

Action by the Missouri State Highway Commission, on the relation and to the use of the Licking State Bank, against the Coopers Construction Service Company and another. Judgment for relator, and defendants appeal. Reversed.

Leahy, Saunders & Walther and A. L. Anderson, all of St. Louis, for appellants.

Hiett, Lamar & Covert, of Houston, for respondent.

BRADLEY, J.

This is an action on a road contractor's bond. The cause was tried before the court without the aid of a jury, and judgment went for relator, and defendants appealed.

We shall refer to relator, the Licking State Bank, as plaintiff. Defendant Coopers Construction Service Company contracted with the state highway commission to do certain road construction on highway No. 7 in Texas county. The construction company gave bond as required by section 1040, R. S. 1919, with defendant indemnity company as surety. The construction company sublet a certain portion of the work to one Claud Johnson. The subcontractor, Johnson, became indebted for labor upon the road in the sum of $464.27, and to secure this amount advanced by plaintiff bank he assigned to the bank his claim against the construction company. As assignee of the claim of the subcontractor, plaintiff bank seeks in this cause to recover on the bond of the original contractor. Error is assigned on the refusal of an instruction in the nature of a demurrer at the close of the case.

First, it is contended that plaintiff failed to prove the cause alleged in the petition. It is contended that the petition is based upon an alleged assignment of the laborers upon the road to plaintiff bank, while the proof showed as assignment from the subcontractor and not from the laborers. The petition would perhaps be construed as defendants contend, but the evidence that the assignment was from the subcontractor went in without objection. Plaintiff alleges that Johnson employed many laborers who performed work upon the road, that Johnson and the construction company became indebted to these laborers in the sum of $464.27, and that at the instance of Johnson and the defendant construction company plaintiff advanced said amount to pay the claims of the laborers. Then plaintiff alleges that "said claims were duly assigned * * * to relator."

When no objection is made to the introduction of evidence the petition should be considered as amended to conform to the evidence. Ehrlich v. Mittelberg, 299 Mo. 284, 252 S. W. 671; State ex inf. v. Gromer (Mo. Sup.) 252 S. W. 705, loc. cit. 707; Treece State Bank v. Wade et al. (Mo. App.) 283 S. W. 714. Plaintiff without objection introduced a written assignment which shows on its face to be from the subcontractor and not from the individual laborers. In this situation there is no room for complaint on the ground of variance.

It is also contended that the assignment is void because it specified no certain amount. The assignment recites that the consideration therefor is "money already advanced." The assignment was made July 19, 1924, and prior thereto plaintiff bank had advanced to the subcontractor $464.27, which amount went to pay for the actual labor performed upon the road. The reference in the assignment to money already advanced and the existence in the bank of a record of the amount advanced taken together make it definite as to the amount assigned.

The question of moment is: Can the subcontractor assign his account or demand against the principal contractor and by the assignment confer upon the assignee the right to maintain an, action upon the contractor's bond required by section 1040, R. S. 1919, referred to, supra? Section 1041, R. S. 1919, specifies who may sue upon the bond required by section 1040. The statute provides that "every person furnishing material or performing labor, either as an individual or as a subcontractor," shall have the right to sue upon the bond. Thus we see that the subcontractor is by the statute specifically empowered to maintain a suit upon the bond. The statute contemplates that the bond shall be made to the state. The bond in the cause here was made to the Missouri state highway commission. But notwithstanding this the bond is a good, common-law bond, and, being conditioned as required by the statute, the subcontractor could maintain an action thereon although it runs to the highway commission instead of the state. Geller, Ward & Rosner Hardware Co. v. Trust Co. (Mo. App.) 234 S. W. 1019.

But there is no authority in the statute for a suit on the bond by the assignee of a subcontractor, and if such right exists it must be found elsewhere than in the statute. In Erath & Flynn v. Allen & Son et al., 55 Mo. App. 107, a Nebraska statute, similar in purpose to our statute, section 1041, was involved. There the suit was sought to be maintained by a subcontractor, but it was held that since the Nebraska statute did not...