Perkins Builders Supply & Fuel Co. v. Independent School Dist. of Des Moines

• Decision Date: 13 November 1928
• Docket Number: 39056
• Citation: 221 N.W. 793,206 Iowa 1144
• Parties: PERKINS BUILDERS SUPPLY & FUEL COMPANY, Appellant, v. INDEPENDENT SCHOOL DISTRICT OF DES MOINES et al., Appellees. RELIANCE BRICK COMPANY, Appellant, v. INDEPENDENT SCHOOL DISTRICT OF DES MOINES et al., Appellees
• Court: Iowa Supreme Court

221 N.W. 793

206 Iowa 1144

PERKINS BUILDERS SUPPLY & FUEL COMPANY, Appellant, v. INDEPENDENT SCHOOL DISTRICT OF DES MOINES et al., Appellees.

RELIANCE BRICK COMPANY, Appellant, v. INDEPENDENT SCHOOL DISTRICT OF DES MOINES et al., Appellees

No. 39056

Supreme Court of Iowa, Des Moines

November 13, 1928

Appeal from Polk District Court.--O. S. FRANKLIN, Judge.

Affirmed.

Carr Cox, Evans & Riley, for appellants.

Charles S. Hutchinson, for Independent School District of Des Moines appellee.

Parrish Cohen, Guthrie, Watters & Halloran, for Southern Surety Company, appellee.

WAGNER, J. STEVENS, C. J., and DE GRAFF, ALBERT, and MORLING, JJ., concur.

OPINION

The opinion fully states the case.--Affirmed.

WAGNER J.

On June 20, 1924, the Independent School District of Des Moines entered into a contract with a contractor, James Maine's Son Company, by the terms of which the contractor was to provide all the material and perform all the work for the erection and completion of an addition to a school building in the city of Des Moines. At the same time, the contractor, with the Southern Surety Company as surety, executed unto the school district the required statutory bond, conditioned as provided by law. The Reliance Brick Company furnished material, which was used in the construction of the building, and there is due said company from the contractor, for said material, the sum of $ 1,983.07. The last item of material furnished by said company bears date of November 4, 1924. Said company filed its claim with the proper officer of the school district on July 22, 1925. Perkins Builders Supply & Fuel Company furnished material which was used in the construction of the building, and there is due said company from the contractor, for said material, the sum of $ 904.80. The last item of material furnished by said company bears date January 13, 1925. Said company filed its claim with the proper officer of the school district on August 12, 1925. Said subcontractors began their actions in equity on June 24, 1926, and in their petitions seek recovery, as against the school district and the surety company, for the amount due on their claims, and ask that the same may be established as a charge upon and against any balance of funds due from the school district to the contractor. Both the school district and the surety company, by their answers, raise the issue that the claims of the subcontractors are barred on account of their failure to comply with the statutes, both as to the filing of their claims and the institution of suits within the time prescribed by the statutory law. The trial court dismissed the petitions of said subcontractors as against the school district and the Southern Surety Company. From this action of the trial court said subcontractors appeal.

It is shown by the record that the school district actually took possession of the building in January, 1925. The record also conclusively establishes the fact that the building was completed and accepted by the school district on or before the 3d day of March, 1925. The final estimate of the amount due from the district was submitted to the board of directors, together with the report of the official architects, Horton Smith, inspector for the architects, Merrill, assistant superintendent of schools, and Spry, the superintendent of the buildings and grounds, that the building had been completed in accordance with the plans and specifications, and that the contractor is entitled to the amount shown by said final estimate. For some reason, not shown by the record, the school district for years has customarily held back the sum of $ 1.00 in making payment of final estimates on similar projects. It appears that, at a meeting of the board of directors, on March 3, 1925, said board resolved itself into a committee of the whole, and the minutes as to said matter give the following information:

"Mr. stated: 'This is the final estimate on the general contract for the Greenwood School Addition, and provides a final payment of the balance on contract of $ 7,310.30. The work has been inspected and approved by the architects, Mr. W. R. Spry, and Mr. A. W. Merrill. It is recommended that all these final estimates be paid, minus the customary reduction of $ 1.00.'"

Immediately after the rising of the committee of the whole, the board adopted and approved the report of the committee, and on the following day, the contractor signed a receipt for the amount of the final estimate, of $ 7,310.30; but, as a matter of fact, the school district's warrant which was received by the contractor was $ 1.00 less than the final estimate, and $ 1.00 less than the amount designated in the receipt.

It is true, as stated by the appellants in their argument, that there is no formal resolution by the board which in terms shows the completion and final acceptance of the...