Nye-Schneider-Fowler Co. v. Bridges, Hoye & Co.

• Decision Date: 13 March 1915
• Docket Number: No. 18890.,18890.
• Citation: 151 N.W. 942,98 Neb. 27
• Parties: NYE-SCHNEIDER-FOWLER CO. v. BRIDGES, HOYE & CO. ET AL.
• Court: Nebraska Supreme Court

98 Neb. 27

151 N.W. 942

NYE-SCHNEIDER-FOWLER CO.

v.BRIDGES, HOYE & CO. ET AL.

No. 18890.

Supreme Court of Nebraska.

March 13, 1915.

Syllabus by the Court.

These cases are presented in a “case stated,” under rule 14 (148 N. W. ix), and were, at the request of the parties, advanced for hearing as that rule provides. This practice facilitates the work of the court, and saves time and expense for litigants.

Chapter 234, Laws 1913, providing for attorney's fees in actions of this kind, has no application to contracts entered into before that act took effect.

Chapter 28, Laws 1889, secured payment of mechanics' and laborers' wages “for labor that shall be performed in the erecting, furnishing or repairing of the building, or in performing the contract,” with the public authorities. It must be construed to protect a subcontractor and laborers employed by him, as did the general mechanic's lien law then in force. The surety on the contractor's bond was liable for all labor necessarily employed in performing the contract. Des Moines Bridge & Iron Works v. Marxen & Rokahr, 87 Neb. 684, 128 N. W. 31 followed; Fidelity & Deposit Co. v. Parkinson, 68 Neb. 319, 94 N. W. 120, distinguished.

The act of 1913 (Laws 1913, c. 170) for the first time extended like security to materialmen. The contracts in these cases were entered into before that act took effect, and as to materials furnished the bond must be considered a common-law contract.

The undertaking in the bond to guarantee “all liability of the first party for all bills for work, labor, and materials to be incurred in connection with the contract herein referred to,” and that he “shall promptly pay all bills for work, labor, and materials performed or furnished in and about said work,” must be construed to include all labor and materials involved in the work specified in the contract; that is, that enter into the structure or are consumed in and about the work, but not for tools and appliances which are the property of the contractors, and may be used from time to time in other works and upon other contracts, and which are not consumed in the work, or which do not go as a part of the building or improvement and necessarily enter therein. The use of an engine for hoisting materials, the repairs on such engine, and oil and fuel used in operating the same, are not guaranteed by the surety. Lumber for concrete forms, if consumed in constructing the building, and a small proportion of sacks, of little comparative value, in which the cement for such concrete was sold, without proof that it was practicable, and contemplated by the parties, that all sacks would be returned to the materialman, are allowed to be recovered for in these cases.

Appeal from District Court, Dodge County; Thomas, Judge.

Four actions consolidated--one by the Nye-Schneider-Fowler Company, one by David W. Hotchkiss and another, one by the Thomas & Courtright Hardware Company, and one by Orvis Clark--all against Bridges, Hoye & Co. and the Lion Bonding & Surety Company. From the judgment, plaintiffs and the Lion Bonding & Surety Company appeal. Modified in part, and affirmed in part.Courtright, Sidner & Lee, of Fremont, for plaintiff.

Sullivan & Rait, of Omaha, for defendants.

SEDGWICK, J.

[1] The attorneys for the parties in this case have made good use of rule 14 (148 N. W. ix) of this court. By so doing they have saved themselves and the court much labor and their clients much expense. It appears that there were pending in the district court for Dodge county four several cases, all involving the same legal questions. These questions were determined by the district court in each of the four cases, and thereupon the counsel representing the respective parties entered into a stipulation under rule 14, which provides for a case stated. The case stated begins with these words:

“In the District and Supreme Courts of the State of Nebraska. First Case: Nye-Schneider-Fowler Co., Plaintiff, Appellant and Appellee, v. Bridges, Hoye & Co., Defendant and Appellee; Lion Bonding & Surety Co., Defendant, Appellant and Appellee.”

Then follows the title of each of the other three cases, and the statement proceeds as follows:

“Stipulation for Consolidation, Joint Appeal, and ‘Case Stated’ under Supreme Court Rule No. 14. Come now the parties to the four actions above mentioned, and both plaintiffs and the surety company, defendant, intending to appeal to the Supreme Court, do hereby stipulate as follows:

1. The first and second cases were commenced in the district court of Dodge county, and the third and fourth cases were commenced in a justice court, and by agreement stipulated to said district court for trial. Issues were properly joined in all four of said cases, so as to properly present for adjudication the matters now in dispute and to be determined by the Supreme Court, and said matters were adjudicated by the district court.

2. This stipulation contains a fair abstract or statement of the essential questions, of the pleadings, finding and rulings of the court, exceptions, and of the facts in all of said four cases; and this stipulation when signed and approved by the trial judge and filed with the clerk of the district court and then certified to the Supreme Court, together with a transcript of the final judgments in said actions, shall constitute a complete ‘case stated’ under rule 14 of the Supreme Court. Said four actions shall be docketed and determined as one case in the Supreme Court.”

Then follows so much of the pleadings and agreed facts in the case as are necessary for presentation of the questions of law relied upon by the respective parties, and an agreed statement of the law questions involved and controverted. In each case there is also a transcript of the record containing the final judgment. It appears from the case stated that a school district of Dodge county entered into a contract for the erection of a high school building in Fremont. The contractor agreed “to furnish the work and material and to clear and level the grounds.” The contractor entered into a bond with the Lion Bonding & Surety Company as surety, in which the contractor and the bonding company are “held and firmly bound unto the school district of Fremont, in the county of Dodge, in the state of Nebraska, second party, for all liability of the first party for all bills for work, labor, and materials to be incurred in connection with the contract.” The suits were prosecuted upon the bond. The plaintiffs asked that attorney's fees be taxed in their favor, which the court refused. The defendants contend that the court allowed items of recovery which are not properly allowed in such actions. These are the two questions presented.

[2] 1. Should the court have taxed the attorney's fees as costs in the case? Section 1, c. 234, Laws 1913, provides for such fees. It appears to be conceded that the bond upon which these actions are brought is, as between the school district and the contractor, within the terms of this statute. The bonding company contends that this statute has no application to bonds entered into before the statute took effect, and in this we think that the bonding company is correct. The statute of 1873 provided for the allowance and recovery of attorney's fees in certain actions. This statute was repealed in 1879. In White v. Rourke, 11 Neb. 519, 9 N. W. 689, it was held that “the repeal did not affect contracts entered into prior to” the repeal; and in Bond v. Dolby, 17 Neb. 491, 23 N. W. 351, it was held that an attorney's fee was properly allowed upon the foreclosure of a mortgage which provided for such attorney's fees and was executed before the repealing act of 1879 took effect. The act of 1913 is quite analogous to the act of 1873, and by those decisions the allowance of attorney's fees under the statute depends upon the existence of the statute at the time of entering into the contract. It seems clear that the Legislature by the act of 1913 did not intend to impair the obligations of existing contracts.

[3] 2. It appears from the case stated that the decree of the court included various items of credit for lumber and material, some of which the defendant contends were improperly allowed. The nature of these items, so far as is necessary to an understanding of the controversy, will be stated in connection with the discussion thereof. In Fidelity & Deposit Co. v. Parkinson, 68 Neb. 319, 94 N. W. 120, the petition of the plaintiff alleged that he furnished to the defendant, “for the construction of said building, material and labor to the amount and value of $921.78,” and alleged that there was a balance due the plaintiff “for the work and labor so furnished.” The judgment of the court was for $127.70 “for materials and labor furnished by the plaintiff.” The statute as it existed then did not include materialmen, and because the judgment was for both material and labor, instead of being for labor exclusively, it was reversed. The reversal is expressly put upon that ground. In the syllabus, however, it is said:

“It is doubtful if the subcontractor who furnishes work and material in the construction of such building is within the terms of the statute.”

And in the opinion, after quoting from New York cases, it is said:

“These cases, with which we are inclined to agree, seem to imply that a statute like the one under consideration is intended for the protection of the laborer who does the manual labor on the building, and not for the contractor who furnishes both labor and material in the construction of the work embraced within the...