Ochs v. M. J. Carnahan Company

• Decision Date: 05 January 1906
• Docket Number: 5,587
• Citation: 76 N.E. 788,42 Ind.App. 157
• Parties: OCHS ET AL. v. M. J. CARNAHAN COMPANY
• Court: Indiana Appellate Court

76 N.E. 788

42 Ind.App. 157

OCHS ET AL. v. M. J. CARNAHAN COMPANY

No. 5,587

Court of Appeals of Indiana

January 5, 1906

Rehearing denied February 22, 1907, Reported at: 42 Ind.App 157 at 160. Transfer denied June 24, 1908.

From Orange Circuit Court; Thomas B. Buskirk, Judge.

Action by the M. J. Carnahan Company against H. Edward Ochs and others. From a judgment for plaintiff, defendants appeal.

Affirmed.

George Shirts, Will H. Talbott and Carson, Thompson & Dowden for appellants.

T. J. Brooks and W. F. Brooks, for appellee.

ROBY, C. J. Comstock, J., absent.

OPINION

ROBY, C. J.

Action upon a bond executed by appellant Ochs as principal, and by his coappellants as sureties, in the sum of $ 2,186, upon conditions as follows:

"The conditions of this obligation are such that whereas said H. E. Ochs has contracted to build and complete a two-story frame building in the town of Mitchell, Indiana, for said George Head, and according to certain written plans and specifications as heretofore agreed to by said H. E. Ochs and said George Head. Now, therefore, if said H. E. Ochs shall build and complete said building in every way according to said written specifications and plan, and shall pay for all material used and for all help employed in the construction of said building, then this obligation to be void; otherwise, to be in full force and effect."

The complaint is in two paragraphs, and each of them contains averments to the effect that said Ochs purchased from appellee lumber and material for use and to be used in said building then being erected; that said material was so used and was of the value of $ 500, and that there is due and unpaid on account thereof $ 261.45, with interest; that demand therefor has been made of the defendants and payment refused by them. A copy of the bond and a bill of particulars of material are filed with the pleading.

By the terms of the bond the sureties agreed to pay for all material used, if the contractor failed to do so. The failure to pay appellee was therefore a breach of the bond for which it may recover. Williams v. Markland (1896), 15 Ind.App. 669, 44 N.E. 562; Young v. Young (1899), 21 Ind.App. 509, 52 N.E. 776; Brown v. Markland (1899), 22 Ind.App. 652, 53 N.E. 295; American Surety Co. v. Lauber (1899), 22 Ind.App. 326, 53 N.E. 793; King v. Downey (1900), 24 Ind.App. 262, 56 N.E. 680.

It is true that in these cases the bond had been given to secure payment for materials used in a public building, upon which a mechanic's lien could not be acquired, and that such fact has a more or less prominent part in the opinions; but while the ability of the materialman and mechanic to compel payment of their claims by filing a lien would be influential in causing them to resort to the bond, it cannot affect the obligation of the bond. If an agreement to pay for material if the contractor does not, is an undertaking for the benefit of the materialman in the one instance, it is in the other. Its terms are not affected by the possibility or impossibility of otherwise procuring payment. If the materialman procured payment by means of a lien, the appellants would be liable to the owner...