Nichols v. R.J. & W.M. Boyd Const. Co.

• Decision Date: 01 February 1915
• Parties: J. C. NICHOLS, Defendant in Error, v. R. J. & W. M. BOYD CONSTRUCTION COMPANY and MISSOURI FIDELITY & CASUALTY COMPANY, Defendants, MISSOURI FIDELITY & CASUALTY COMPANY Plaintiff in error
• Court: Kansas Court of Appeals

172 S.W. 1183

187 Mo.App. 127

J. C. NICHOLS, Defendant in Error, v. R. J. & W. M. BOYD CONSTRUCTION COMPANY and MISSOURI FIDELITY & CASUALTY COMPANY, Defendants, MISSOURI FIDELITY & CASUALTY COMPANY Plaintiff in error

Court of Appeals of Missouri, Kansas City

February 1, 1915

Error to Jackson Circuit Court.--Hon. W. O. Thomas, Judge.

Judgment affirmed.

John P McCammon and R. M. Sheppard for plaintiff in error.

(1) The charter provision under which this contract was given and executed by the plaintiff in error created a new obligation a new right, and it provided a specific method of enforcing the rights created. When this is done, the remedy provided for enforcing the right in the act should be followed to the exclusion of all other remedies. Endlich on Interpretation of Statutes, sec. 465; Riddick v. Governor, 1 Mo. 147; City of Rochester v. Campbell, 123 N.Y. 414; 26 Am. & Eng. Ency. of Law (2 Ed.), p. 671; City of Clinton v Henry County, 115 Mo. 569; Hickman v. City of Kansas, 120 Mo. 118; City of Pleasant Hill v. Dasher, 120 Mo. 680.

Haff, Meservey, German & Michaels and Wm. S. Norris for defendant in error.

(1) Inasmuch as the defect in parties, if it is a defect, appears on the face of the petition, the defendants have waived the objection that there is a defect of parties plaintiff, or that plaintiff has not the legal capacity to sue, by failing to raise the point by demurrer. Secs. 1800, 1804, R. S. 1909; State of Missouri v. Sappington, 68 Mo. 454; Farmers' Bank of Dearborn v. Fudge, 109 Mo.App. 186; Benne v. Schnecko, 100 Mo. 257; State ex rel. v. True, 20 Mo.App. 176; Dodson v. Lomax, 113 Mo. 555; Scott, Force Hat Co. v. Hombs, 127 Mo. 392; May v. Burke, 80 Mo. 675; Baxter v. St. Louis Transfer Co., 198 Mo. 1. (2) But without respect to the question of waiver, the suit was properly brought in the name of plaintiff. Sec. 1729, R. S. 1909; Ellis v. Harrison, 104 Mo. 276; City of St. Louis v. Von Phul, 133 Mo. 561; Divers v. Howard, 144 Mo. 671; Lumber Co. v. Schwartz, 163 Mo.App. 659, 147 S.W. 501; Uhrich v. Globe Surety Co., 166 S.W. 845.

OPINION

JOHNSON, J.

--This is an action on a contractor's bond to recover for labor and materials furnished by plaintiff to the contractor in the construction of a public sewer in Kansas City. A trial in the circuit court resulted in a verdict and judgment for plaintiff and defendant Missouri Fidelity & Casualty Company brought the case to this court on writ of error. The only points made by that defendant are, first, that the action "was not brought in the name of the proper party" and, second, that the petition fails to state a cause of action.

The suit was begun and prosecuted in the name of J. C. Nichols as plaintiff. The defendants are the R. J. & W. M. Boyd Construction Company, the contractor, and the Missouri Fidelity & Casualty Company, the surety on the contractor's bond. The petition alleges, and the proof shows, that a legal contract for the construction of a public sewer was entered into by Kansas City and the Construction Company, by the terms of which the sewer was to be built by the company according to plans and specifications on file for the consideration of $ 49,381, to be paid in special taxbills, that a certain part of the work was done by plaintiff under contract with the Construction Company and that the latter is indebted to plaintiff on account of such work, which was completed September 27, 1912.

Further, it is alleged that in the contract so entered into by the city, the defendant Missouri, Fidelity & Casualty Company, which executed the contract as surety, being named therein as a party to the contract, guaranteed that the contractor "should well and truly perform the covenants contained in said written agreement, and would pay for the work and labor of all laborers, subcontractors and teamsters, teams and wagons employed on the work, and for all materials used therein, and said defendant, Missouri Fidelity & Casualty Company, further agreed in said contract that if the cost of such work and labor and materials was not paid in full by said defendant, R. J. & W. M. Boyd Construction Company, then the said defendant Missouri Fidelity & Casualty Company itself agreed to pay for said work, labor and materials, or any part thereof, which should not be paid by said R. J. & W. M. Boyd Construction Company within ten days after the money for said work, labor and materials became due and payable. And plaintiff says that it was further provided in said contract that such provision should entitle any and all laborers and teamsters and owners of teams and wagons who might do the work, and parties who might furnish materials on or for the improvements to be done under said contract, to sue and recover from said defendant Missouri Fidelity & Casualty Company the amount due or unpaid to them by said defendant R. J. & W. M. Boyd Construction Company, and said defendant Missouri Fidelity & Casualty Company agreed with Kansas City in said written contract that the said defendant R. J. & W. M. Boyd Construction Company would well and faithfully perform each and all the terms and stipulations in said written contract to be done, kept and performed on the part of the R. J. & W. M. Boyd Construction Company, but it was further provided that said defendant Missouri Fidelity & Casualty Company should not be liable on said guarantee on account of the materials used and labor done upon said work, beyond the sum of $ 49,381--the estimated cost of materials used and labor done upon said work."

The allegations of the petition contain no reference to charter provisions of Kansas City relating to the taking of such bonds or the manner and time in which actions may be brought thereon by laborers, materialmen and subcontractors, nor any reference to the completion of the sewer and its acceptance by the city. The undertaking of the surety as pleaded in the petition is the same as that expressed in the construction contract which was introduced in evidence. No reference is made in the instrument to the provisions of the charter upon which defendant relies for a reversal of the judgment and no such provisions were offered in evidence.

Sec. 19, Art. VIII, of the charter (see Charter and Ordinances of Kansas City, 1909, p. 332) provides that all contracts for making city improvements on streets, sidewalks, avenues or alleys, or for constructing sewers . . . shall contain a covenant on the part of the contractor or contractors with the city to pay for the work and labor of all laborers, subcontractors . . . and for all materials used therein and the performance of such covenant shall be guaranteed by good and sufficient sureties signing the contract whose sufficiency shall be approved by the city comptroller, but who shall not be liable beyond the estimated cost of the materials used and the labor done upon the job to be stated in the contract."

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