Payseno v. Padgett Co.

• Decision Date: 15 March 1927
• Docket Number: No. 5203.,5203.
• Citation: 55 N.D. 154,212 N.W. 836
• Parties: PAYSENO v. PADGETT CO. et al.
• Court: North Dakota Supreme Court

55 N.D. 154

212 N.W. 836

PAYSENO

v.PADGETT CO. et al.

No. 5203.

Supreme Court of North Dakota.

Feb. 14, 1927.

Rehearing Denied March 15, 1927.

Syllabus by the Court.

Section 6832 of the Supplement to the 1913 Compiled Laws and section 6833 of the Compiled Laws for 1913, which require public officers and boards authorized to enter into contracts for public improvements to take from the contractor a bond conditioned to be void if the contractor and all subcontractors shall pay all bills and claims on account of labor or materials furnished in and about the performance of the contract, at the peril of being held personally liable, and section 607a6 of the Supplement to the 1913 Compiled Laws, specifically requiring bonds from contractors for highway work, are designed to afford protection to those furnishing labor, service, or material entering into a public improvement.

A statutory bond will be construed in the light of the purpose for which it is required as expressed in the statute.

One furnishing for hire horses which are used in the prosecution of highway work under a contract performs a service within the condition of a bond protecting persons performing any labor or services or furnishing material in the performance of the contract.

Appeal from District Court, Benson County; C. W. Buttz, Judge.

Action by George Payseno against the Padgett Company and others. Judgment for plaintiff against the named defendant. From judgment of dismissal as to defendant the Northern Trust Company, plaintiff appeals. Reversed and remanded, with directions.

Geo. Thom, Jr., of McClusky, for appellant.

Pierce, Tenneson, Cupler & Stambaugh, of Fargo, and Wardrope & Butterwick, of Minnewaukan, for respondent.

BIRDZELL, C. J.

[1] This is an action brought to recover a sum of money which the plaintiff claimed to be due him for the hire of horses which were used by the defendant the Padgett Company in certain road work in Wells county. The other defendant, the Northern Trust Company, is surety on two contract bonds, covering the projects upon which the horses were used. In the lower court the plaintiff had judgment against the Padgett Company for $2,026, plus interest and costs. Both the plaintiff and the defendant the Northern Trust Company moved for a directed verdict, whereupon the court held that the hire of the horses did not come within the bond and gave judgment of dismissal and for costs in favor of the company. The plaintiff appeals from that portion of the judgment. The single question involved in this court is whether or not the amount due the plaintiff from the Padgett Company for the hire of horses used upon the project in question is within the protection of the bonds. Separate bonds were executed covering sections A and B of the project in question. They are similar in form, differing only as to amount. The bond reads:

“Know all men by these presents, that we, the Padgett Company of Leeds, N. D. (hereinafter called the principal), and the Northern Trust Company, Fargo, North Dakota (hereinafter called the surety), are held and firmly bound unto the state of North Dakota and to any person or persons performing any labor or services or furnishing any material used in the performance of the terms and conditions of this contract hereinafter mentioned, in the sum of twenty-eight thousand three and 19/100 dollars ($28,003.19) good and lawful money of the United States of America, to the payment of which sum of money, well and truly to be made, the said principal binds himself, his heirs, executors, administrators or assigns and the surety binds itself, its successors or assigns, jointly and severally, firmly by these presents.

Signed, sealed and dated this 4th day of Sept. 1923.

Whereas, said principal has entered into a certain written contract, bearing the date of the first day of June, 1923, with the North Dakota State highway commission and Wells county for the construction of a certain section of a state highway known as Federal Aid Project No. 175 Section B, Road Grading and Incidental Items, in the county of Wells, North Dakota:

Now, therefore, the condition of the foregoing obligation is such that if the said principal shall well, truly and faithfully comply with and perform all the terms, covenants and conditions of said contract, on his part to be kept and performed according to the terms and tenor of said contract, and shall protect the said state of North Dakota and any person or persons performing any labor or services or furnishing material to be used in the performance of the terms and conditions of this contract against any loss and shall pay any excess of cost as provided in said contract, and all amounts, damages, costs, judgments which may be recovered against said state or its officers or agents, or which the said state of North Dakota may be called upon to pay to any person or corporation by reason of any damages arising or growing out of the doing of said work or the repair thereof or the manner of doing same, or the neglect of the said principal or his agents or servants, or the improper performance of the said work by the said principal or his servants or agents, or from any other cause; and the above bounden principal, his heirs, executors or administrators or assigns, shall and do well and truly pay or cause to be paid the wages stipulated and agreed to be paid to each and every laborer employed by the said principal or his agents, and shall well and truly pay for any and all material for which payment under terms of this contract is to be made by them, then this obligation is null and void; otherwise to remain in full force and virtue.

And the said surety hereby stipulates and agrees that no...