Multnomah County v. U.S. Fidelity & Guar. Co.

• Decision Date: 22 April 1919
• Citation: 180 P. 104,92 Or. 146
• Parties: MULTNOMAH COUNTY v. UNITED STATES FIDELITY & GUARANTY CO. ET AL.
• Court: Oregon Supreme Court

180 P. 104

92 Or. 146

MULTNOMAH COUNTY v. UNITED STATES FIDELITY & GUARANTY CO. ET AL.

Supreme Court of Oregon

April 22, 1919

Department 2.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

Action by Multnomah County, for the use and benefit of R. J O'Neil, against the United States Fidelity & Guaranty Company, a corporation, and another. Judgment for defendants and plaintiff appeals. Reversed.

On January 27, 1916, plaintiff filed its complaint against the defendants in the circuit court of Multnomah county, and after the necessary corporate allegations avers that about January 21, 1915, the defendant Pacific Bridge Company entered into a written contract with the plaintiff, Multnomah county, for the improvement of that portion of the Columbia River Highway known as "Section D," in accord with the plans and specifications therefor, in and by which the contractor agreed "to furnish all materials, tools and equipment and all labor necessary to complete the work."

The complaint alleges that pursuant to said contract, "and in accordance with the laws of the state of Oregon," the defendant Pacific Bridge Company, as principal, and United States Fidelity & Guaranty Company, as surety, executed to Multnomah county its certain penal bond, conditioned "that Pacific Bridge Company should promptly pay all laborers, mechanics, subcontractors and materialmen, and all persons who should supply such laborers, mechanics subcontractors or materialmen with supplies or provisions for carrying on such work"; that the Pacific Bridge Company "entered upon the work of carrying out said contract and making said improvement in accordance therewith"; that it sublet a portion of said work to Thomas A. Sweeney or contracted with him to furnish teams and equipment to haul materials to be used and which were used in the work of carrying out said contract; and that during the months of August, September, October, and November of 1915, R. J O'Neil, for whose use and benefit this action was brought, furnished and supplied Sweeney with certain horses pursuant to an agreement with him that he should keep the horses "in a camp established by him on said improvement work, assume the cost of feed and hire drivers for the same, and pay in addition to the said R. J. O'Neil the reasonable value of the labor performed by said horses in the work of teaming or hauling said materials for use in said improvement." It is further alleged that "the reasonable value of the labor so furnished and supplied by said R. J. O'Neil by said horses was the sum of $315.00," no part of which has been paid; that the full amount thereof is due and owing to the said O'Neil; and that prior to the commencement of the action he made the necessary proofs and furnished the required affidavits which gave him the right of action. A copy of the bond and a copy of the contract between the bridge company and Multnomah county are attached to the complaint as exhibits and made a part thereof.

The defendant filed a demurrer upon the ground:

"That said complaint does not state facts sufficient to constitute a cause of suit or action against the defendants herein or either thereof."

On February 21, 1916, the trial court sustained the demurrer and dismissed the action and rendered judgment against the plaintiff for costs, from which ruling the plaintiff appealed, claiming that the court erred in sustaining the demurrer to the complaint, and that is the only question presented on the appeal.

R. J. O'Neil, of Portland (W. B. Gleason, of Portland, on the briefs), for appellant.

David E. Johnston Wilson, of Portland (Clark, Skulason & Clark, of Portland, on the briefs), for respondents.

JOHNS, J. (after stating the facts as above).

The action is founded upon section 6266, Lord's Oregon Laws, which provides as follows:

"Hereafter any person or persons, firm or corporation, entering into a formal contract with the state of Oregon, or any municipality, county, or school district within said state, for the construction

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