Orinoco Supply Co v. Shaw Bros. Lumber Co

• Decision Date: 20 November 1912
• Citation: Orinoco Supply Co v. Shaw Bros. Lumber Co, 76 S.E. 273, 160 N.C. 428 (N.C. 1912)
• Court: North Carolina Supreme Court
• Parties: ORINOCO SUPPLY CO. v. SHAW BROS. LUMBER CO. et al.

76 S.E. 273

160 N.C. 428

ORINOCO SUPPLY CO.

v.SHAW BROS. LUMBER CO. et al.

Supreme Court of North Carolina.

Nov. 20, 1912.

1.Mechanics Liens (§ 317^*)—Bond of Building Contractor —Construction — "Beneficiaries. ''

Materialmen and laborers were "beneficiaries" of a bond specifying that the contractor had agreed to pay for all labor and material supplied for the erection of the building, and to save the principal harmless from all the claims and liens for material and labor furnished; and they could sue thereon.

[Ed. Note.—For other cases, seeMechanics' Liens, Cent. Dig. § 659;Dec. Dig. § 317.*]

2.Mechanics' Liens (§ 315*)—Bond of Building Contractor.

Where a building contractor's bond, in addition to an agreement to save the principal harmless, stipulated that the contractor should pay for the labor and material, an action could be maintained thereon by materialmen and laborers after the contractor's default, though the principal had not yet suffered pecuniary injury from such default

[Ed. Note.—For other cases, seeMechanics' Liens, Cent. Dig. § 658;Dec. Dig. § 315.*]

Appeal from Superior Court Forsyth County; F. A. Daniels, Judge.

Action by the Orinoco Supply Company against Shaw Bros. Lumber Company and others.From a judgment overruling a demurrer to the complaint the Illinois Surety Company appeals.Affirmed.

in the complaint recovery is sought against defendant the Illinois Surety Company for $346.56 on account of material furnished by plaintiff for building a rectory for St. Paul's Church, in the city of Winston-Salem, N. C.The partiesdefendant are the contractor, J. T. B. Shaw, who was to "furnish all the material and perform all the work for the erection and completion of said rectory, " etc., the Illinois Surety Company, who with said Shaw signed the bond sued on, and the vestry of St. Paul's Church also appear formally as defendants.The defendant the Illinois Surety Company demurred to the complaint in terms as follows: "That the complaint does not state facts sufficient to constitute a cause of action, for that it appears upon the face of said complaint that there is no privity of contract between the plaintiff and the defendant the Illinois Surety Company; that it appears on the face of said complaint that there was no surety, indemnity, nor guaranty by the Illinois Surety Company to the plaintiff in this action; that it appears on the face of said complaint that any cause of action that would arise on account of the surety, indemnity, or guaranty of the defendantIllinois Surety Company would accrue to the vestry of St Paul's Church, and not to the plaintiff in this action; that it further appears on the face of said complaint that the plaintiff in this action furnished material which went into the erection of the building erected by Shaw Bros. Lumber Company for the vestry of St. Paul's Church, and any cause of action which the plaintiff has on the account of the failure of the said Shaw Bros. Lumber Company to pay it for said material would be against the said Shaw Bros. Lumber Company, and in no event would plaintiff have a cause of action against the Illinois Surety Company.There was judgment overruling the demurrer, and the Surety Company excepted and appealed.

Wilson & Ferguson, of Greensboro, for appellant.

Manly, Hendren & Womble, of Winston-Salem, for appellee.

HOKE, J. in respect to the liability of the Illinois Surety Company, the complaint, after stating the contract on the part of J. T. B. Shaw to provide all the material and perform all the work for the erection and completion of rectory, continues:

"(3) That, amongst other provisions contained in said contract the said Shaw contracted and agreed to pay for all such labor and material, and to save the said J. C. Buxton and others, committee as aforesaid, harmless from any and all claims and liens which might arise out of contracts made by said Shaw with material furnishers and laborers, and expressly provided: 'Should there prove to be any such claims [for material or labor] after all payments are made, the contractor shall refund to the owner all moneys that the latter may be compelled to pay in discharging any lien on said premises obligated in consequence of the contractor's fault'

"(4) That on the 25th day of January, 1911, in...