Plummer v. Kennedy

• Decision Date: 01 November 1888
• Citation: 72 Mich. 295,40 N.W. 433
• Court: Michigan Supreme Court
• Parties: PLUMMER v. KENNEDY ET AL.

40 N.W. 433

72 Mich. 295

PLUMMER v. KENNEDY ET AL.

Supreme Court of Michigan

November 1, 1888

Error to circuit court, Jackson county; G. T. GRIDLEY, Judge.

Action on the case by Charles H. Plummer against Frederick A Kennedy, Charles S. Anderson, George Berry, and John W. Watts to recover for materials furnished, based on defendants' neglect to take from the contractor for the construction of a county-house a bond for the protection of laborers and material-men, as required by Pub. Acts 1883, No. 94, as amended 1885, No. 45. The title of the act of 1883 is "An act to insure payment of wages earned, and for materials used, in constructing, repairing, or ornamenting public buildings and public works;" and section 1, as amended, provides "that when public buildings, or other public works or improvements, are about to be built repaired, or ornamented, under contract, at the expense of this state, or of any county, city, village, township, or school-district thereof, it shall be the duty of the board of officers or agents, contracting on behalf of the state county, city, village, township, or school-district, to require sufficient security, by bond, for the payment by the contractor and all subcontractors for all labor performed, or materials furnished, in the erection, repairing, or ornamenting of such building, works, or improvements." Defendants' demurrers to the declaration were overruled and they brought error.

CHAMPLIN J.

This is an action on the case by the plaintiff, as a material-man against Kennedy and Anderson, as superintendents of the poor, and Berry and Watts, as members of a committee of the board of supervisors of Jackson county, acting with the superintendents of the poor in the construction of a county-house, to recover for materials furnished to the contractor. The right of action is claimed under act 94 of the Public Acts of 1883, as amended by act 45 of the Public Acts of 1885, for the neglect of the persons above named to require a bond from the contractor for the protection of laborers and material-men, as provided by the act. Berry and Kennedy are alleged in the declaration to be the superintendents of the poor of Jackson county, and one Horatio S. Smith was averred to be the other member of the board. The declaration also avers that Berry and Watts were members of the board of supervisors of said county; that the superintendents of the poor were, by a resolution adopted by the board of supervisors, together with a committee thereafter to be appointed and selected from the members of the board, duly authorized, empowered, and directed to let the rebuilding of a county-house by contract to the lowest bidder, to be constructed under the supervision of a competent architect, with the advice and consent of said superintendents of the poor, and said committee so to be appointed by the said board of supervisors from the members thereof, or of such member thereof as the said board might thereafter designate; that afterwards the board of supervisors appointed as such committee George Berry, John W. Watts, and William H. Adams, each being members of said board of supervisors, to act as an advisory committee to co-operate with said superintendents of the poor in the proposed construction of the said county-house; that afterwards defendants Kennedy and Anderson, acting for and in the name of the board of superintendents of the poor, and Berry and Watts, acting for and in the name of said advisory committee, entered into a contract, in behalf of said county of Jackson, with the firm of W. H. Myers & Son of Hillsdale, Mich., for the furnishing of materials for and the construction of a certain building, to be known as the "County Farm Building," otherwise known as the "County Poorhouse," of the county of Jackson, which contract provided that the firm of W. H. Myers & Son should erect and complete the brick and carpenter work to be done on said building, and to furnish material necessary therefor, the same being a public building, and to be built, at the expense of the county of Jackson, upon the farm known as the "County Farm," which was...