Royal Indem. Co. v. Intern. Time Recording Co. of New York

• Decision Date: 23 October 1934
• Citation: 255 Ky. 823,75 S.W.2d 527
• Parties: ROYAL INDEMNITY CO. v. INTERNATIONAL TIME RECORDING CO. OF NEW YORK.
• Court: Kentucky Court of Appeals

75 S.W.2d 527

255 Ky. 823

ROYAL INDEMNITY CO. v. INTERNATIONAL TIME RECORDING CO. OF NEW YORK.

Court of Appeals of Kentucky

October 23, 1934

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by the International Time Recording Company of New York against the Royal Indemnity Company. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Woodward Hamilton & Hobson, of Louisville, for appellant.

George W. Norton, Jr., and Crawford, Middleton, Milner & Seelbach all of Louisville, for appellee.

STANLEY Commissioner.

The Utilities Appliance Company contracted with the Board of Education of Louisville to furnish certain electrical apparatus for a new school building. The appellee International Time Recording Company, sold and delivered to that company materials which were installed in the building. Upon its failure to pay a balance of $585.12 on that account, the appellee recovered a judgment against the appellant, as surety on the bond of the Utilities Appliance Company, from which this appeal is prosecuted.

The contract between the Utilities Appliance Company and the Board of Education provided that "*** and said contractor will promptly pay for all labor performed and all material used or furnished in completing said work and carrying out this contract."

The pertinent part of the bond is as follows:

"But the conditions of this obligation are such that whereas said principal has entered into a written contract with said board for electrical wiring, clock and program, telephone and fire alarm systems in the James Russell Lowell Elementary School, which said contract dated the 9th day of March is attached hereto and made a part hereof.

Now if said principal shall well and truly keep and perform all and each of the terms, conditions and agreements of said contract required thereon to be kept and performed by said principal, then this obligation to be void, otherwise to remain in full force and effect."

As pointed out in Standard Oil Company v. National Surety Company, 234 Ky. 764, 29 S.W.2d 29, we have two lines of cases involving liability under building contracts and bonds of this kind to laborers and materialmen for services or material furnished for the building and not paid for by the contractor. The difference is not a confusion in the law, but arises from the different terms of the instruments. It is settled that the contract...