National Surety Co. v. Foster Lumber Co.

• Decision Date: 01 July 1908
• Docket Number: 6,219
• Citation: National Surety Co. v. Foster Lumber Co., 42 Ind.App. 671, 85 N.E. 489 (Ind. App. 1908)
• Parties: NATIONAL SURETY COMPANY v. FOSTER LUMBER COMPANY
• Court: Indiana Appellate Court

85 N.E. 489

42 Ind.App. 671

NATIONAL SURETY COMPANY v. FOSTER LUMBER COMPANY

No. 6,219

Court of Appeals of Indiana

July 1, 1908

Rehearing denied October 15, 1908,

Transfer Denied December 18, 1908.

From Superior Court of Marion County(68,867); Vinson Carter Judge.

Action by the Foster Lumber Company against the National Surety Company.From a judgment for plaintiff, defendant appeals.

Affirmed.

Taylor, Woods & Willson, for appellant.

Joseph W. Hutchinson and William A. Ketcham, for appellee.

A. G. Cavins and Paul N. Bogart, amici curiae.

OPINION

ROBY, J.

Action by appellee.Special finding of facts, conclusions of law thereon, and judgment in accordance therewith against the appellant for $ 1,193.51 and costs.

The overruling of the demurrers for want of facts to the complaint and the correctness of the court's first conclusion of law are assigned as errors.

The court found that the Board of Trustees of the Indiana State Normal School, being duly authorized to do so, was, prior to March 31, 1904, making certain improvements upon property owned by the State in connection with said school, and entered into a contract in relation thereto with Harrison B. Walter.The contract is set out in extense in the findings, and is to the effect that said Walter will, before February 1, 1905, furnish the material, work and labor for, and erect, furnish, complete and deliver to said board, a new three-story school building, according to certain plans and specifications to the acceptance of said board and its architect, in consideration of $ 44,820, to be paid on estimates, fifteen per cent of each estimate to be retained until the completion of the building.It was provided that before any payment was made a certificate should be obtained from the architect and building committee that they considered said payment properly due, and also a certificate from the office where mechanics' liens are filed, signed by the proper officer, to the effect that said building is at the time free from all liens, and before final payment is made a written and duly signed statement shall be obtained from each person who furnished materials for said building that the same have been fully paid for; that the contractor shall provide at his own proper cost and charges all manner of material and labor, scaffolding, implements, moulds, models and cartage of every description for the due performance of the several kinds of work.Other provisions are not regarded as relevant to the present controversy.Concurrently with the execution of said contract the appellant, with said Walter, executed a bond in the sum of $ 20,000, the conditions of which were that

"Whereas said Harrison B. Walter has this day entered into a contract in writing with the Board of Trustees of the Indiana State Normal School to erect [describing building], to the full satisfaction and acceptance of said board of trustees and architects, and pay all the cost of all labor and of all materials and all other costs and damage, etc.Now should said Harrison B. Walter erect, * * * within the time therein specified, * * * and save and protect and indemnify said board of trustees from all loss and expense of any and every kind on account of such building, by paying all the cost of excavating therefor and of all materials used in and labor done on, in and about said building, * * * and in every way comply with and fulfil the terms of the contract on his part, then this obligation shall be void and of no effect, else to remain in full force."

Such contractor invited from appelleea proposition to furnish certain materials described in the bill of particulars, which proposition was accepted by him and said materials, with the knowledge of said board of trustees, furnished for and used in making said improvement.The price agreed upon was $ 1,280.76, of which sum $ 1,193.51 is due and unpaid, payment having been demanded from appellant before suit was brought.

The first conclusion of law was that appellee is entitled to recover said sum.The question for decision is thus stated by the appellant: "The only question to be decided in this...