School Dist. of Fredericktown v. Beggs

• Decision Date: 21 February 1910
• Citation: 126 S.W. 530,147 Mo. App. 177
• Parties: SCHOOL DIST. OF FREDERICKTOWN ex rel. FREDERICKTOWN BRICK CO. v. BEGGS et al.
• Court: Missouri Court of Appeals

126 S.W. 530

147 Mo. App. 177

SCHOOL DIST. OF FREDERICKTOWN ex rel. FREDERICKTOWN BRICK CO. v. BEGGS et al.

St. Louis Court of Appeals. Missouri.

February 21, 1910.

1. CRIMINAL LAW (§ 1090) — SAVING EXCEPTIONS.

Exceptions cannot be saved at the trial by record entries.

2. APPEAL AND ERROR (§ 584) — ABSTRACT — FORM — INTERLINEATIONS.

Under Court of Appeals Rule 15 (121 S. W. vi), requiring abstracts to be printed in fair type, an abstract, consisting of 40 pages with pen and ink interlineations of matters which should appear therein on 16 of them, and sometimes 2 or more on a page, was improper.

3. SCHOOLS AND SCHOOL DISTRICTS (§ 81) — SCHOOLHOUSES — CONSTRUCTION — BONDS — RIGHTS OF MATERIALMEN.

Rev. St. 1899, § 6761 (Ann. St. 1906, p. 3328), provide that a schoolhouse contractor shall execute a bond conditioned for the payment of all material used in the work and all labor performed on the work, whether by subcontract or otherwise. Held, that a schoolhouse contractor's bond, providing that it was made for the use of all persons who might become entitled to liens under the contract or to whom the contractor might become indebted, and that it might be sued on by such persons as if executed to them in person, was for the benefit of materialmen furnishing material to the contractor used in the building.

Appeal from Circuit Court, Madison County; Chas. A. Killian, Judge.

Action by the School District of Fredericktown, on relation of Fredericktown Brick Company, against J. F. Beggs and others. Judgment for relator, and defendants appeal. Affirmed.

This is an action on a contractor's bond, to recover a debt for materials furnished to one J. F. Beggs, contractor, which were used in the construction of a public high school building at Fredericktown, Mo. It is set out in the petition in the case that Beggs, before beginning the construction of the high school building, and as part of his agreement with the school board, made his bond, the other defendants being his sureties, to the school district, whereby they bound themselves in the amount of the penalty of the bond to the school district, "as well as all persons who might become entitled to liens under the provisions of the foregoing described contract, or to whom the said J. F. Beggs might become indebted for labor performed on said building, or material furnished and which entered into its construction," the condition of the bond being that if said J. F. Beggs in all things stand to and abide by and well and truly keep and perform the covenants, etc., of the contract, "and should duly and promptly pay and discharge all indebtedness that might be incurred by the said Beggs in carrying out said contract, and complete the said building free of all mechanical liens, and should truly keep and perform the covenants, conditions and agreements in said contract contained on his part to be kept and performed at the time and in the manner and form therein specified," then the bond to be void; it being further provided in the bond that, in case an action is brought under its provisions, to pay "all costs of such action, including attorney's fees, which might be incurred in enforcing the payment and collection of any and all indebtedness incurred by said Beggs in carrying out said contract"; it being also provided and set out in the bond that "it is made for the use and benefit of all persons who may become entitled to liens under said contract, or to whom said Beggs might become indebted, and that it might be sued upon by such persons as if executed to them in proper person." The petition then avers that, after execution of the contract and bond, Beggs, as contractor, erected and completed the building, and the school district paid him for it and accepted the building; that plaintiff, at request of Beggs, had furnished pressed brick to Beggs which were used by him in the construction of the building, of the total value of $2,139.06, and on which Beggs had paid $1,539.06; and that $600 remained unpaid on account thereof, which Beggs had refused to pay, thereby breaching the bond. Judgment is accordingly asked for the penalty of the bond and execution for that amount and interest and costs and for a reasonable amount for attorney's fees. The answer of the sureties, after a general denial, admits the execution of the contract and bond as pleaded, and sets up departures from the contract, in the way of additions and alterations, etc., which it was claimed absolved the sureties from payment of the obligation of the bond. Beggs admitted in his answer an indebtedness of $227.76 and no more. The reply was a general denial. The case was tried before the court, a jury being waived, and a judgment was rendered for the penalty of the bond and damages assessed at $600, and an attorney's fee allowed for $100.

The court was requested to make a finding of fact in the case, which it did, as follows, entering it of record as we gather from the abstract: "The court finds the following facts in addition to those admitted in the pleadings. (1) That the defendant, J. F Beggs, as principal, and the other defendants above named, as sureties, signed, executed, and delivered the bond dated June 1, 1907, and offered in evidence. (2) That the defendant, J. F. Beggs, entered into the contract with the School District of Fredericktown, dated June 1, 1907, whereby he agreed to construct, build, and complete the high school building for said district in accordance with the conditions set out in said contract, which said contract was offered in evidence. (3) That the defendant J. F. Beggs, completed the building mentioned in the said contract, and was paid therefor in full by the said school district, in accordance with the contract. (4) That he purchased for and used in the erection of said building the material set out in the account filed by plaintiff and offered in evidence, at and for the price therein set out and agreed upon, and that there is still due and unpaid plaintiff, from defendant, for such material, the sum of $600. (5) That the sum of $100 the court finds to be reasonable allowance for plaintiff's attorney's fee in this cause, and that said fee is provided for in the bond offered in evidence."

Judgment was, accordingly, entered for the penalty of the bond, and awarding execution for $600 debt and $100 attorney's fee and costs,...