School Dist. v. Livers

• Decision Date: 07 February 1899
• Citation: 147 Mo. 580,49 S.W. 507
• Parties: SCHOOL DIST. OF KANSAS CITY ex rel. KOKEN IRON WORKS v. LIVERS et al.
• Court: Missouri Supreme Court

49 S.W. 507

147 Mo. 580

SCHOOL DIST. OF KANSAS CITY ex rel. KOKEN IRON WORKS v. LIVERS et al.

Supreme Court of Missouri, Division No. 2.

February 7, 1899.

CONTRACTS — PRIVITY — ACTIONS — PRINCIPAL AND SURETY — DISCHARGE OF SURETY.

1. Under a contract for erecting a building, between a school district and a contractor, whereby the latter was required to give bond for the protection of the school district and all persons furnishing materials, the bond may be enforced by a material man, though he is not a party to the contract, where he has a valid claim against the contractor for materials furnished.

2. Sureties on a bond given by a contractor to secure the owner against loss from the nonfulfillment of the contract, and the material men for the payment of their claims, are not released from liability to material men whose claims have accrued against the contractor by a subsequent payment by the owner to the contractor in violation of the terms of the contract, though such payment might release the liability of the sureties to the owner.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by the school district of Kansas City, on the relation of the Koken Iron Works, against John F. Livers and others, on a bond. From a judgment for plaintiff, defendants appealed to the Kansas City court of appeals, where the judgment was reversed, and the cause certified to the supreme court. Reversed.

Karnes, Holmes & Krauthoff, for appellants. Ellis, Reed, Cook & Ellis, for respondent.

BURGESS, J.

Upon the trial of this cause in the circuit court there was judgment for plaintiffs, from which defendant sureties appealed to the Kansas City court of appeals, where the judgment of the circuit court was reversed. Plaintiffs then filed a motion for rehearing, which was overruled, and the cause certified to this court, because one of the judges of that court was of the opinion that the decision rendered is in conflict with Board v. Woods, 77 Mo. 197.

The facts are as follows: Defendants Livers and Pullman, having acquired the contract, at the price of $72,500, for erecting an addition to the Central High School in Kansas City, Mo., were required to give, and did sign, a bond in the sum of $54,000, conditioned that the bond was executed, not only for the protection of the school district, but also for the benefit of all parties who might furnish materials used in the building, and that any such party, having unpaid bills therefor, might, in the name of the school district, maintain an action upon the bond to recover the amount of such bills. Schmidt and Wible and David Pullman were securities on the bond. Pullman has since deceased, and Anna A. Pullman, administratrix, represents his estate.

The decision rendered by the court of appeals is not only in conflict with Board v. Woods, 77 Mo. 197, but is in conflict with the more recent decisions of this court in City of St. Louis v. Von Phul, 133 Mo. 561, 34 S. W. 843, and Devers v. Howard, 144 Mo. 671, 46 S. W. 625, in which it is held that a contract between persons, made upon a valid consideration, may be enforced by a third person, though not named in the contract, when the obligee owes to him some duty, legal or equitable, which would give him a just claim, and must therefore be overruled.

It is contended by defendants that the evidence showed that the school district paid Livers and Pullman, the contractors, in excess of 80 per cent. on amount due them on their contract, which was in violation of its terms, and, as such payment was without the knowledge or consent of the securities, then the defendants Anna Pullman, administratrix, and Schmidt and Wible were thereby released. Defendants asked a declaration of law presenting this theory of the case which was refused; and, as there was evidence tending to show such payment, we take it for granted that it was refused upon the ground that, even if true, it did not have the effect to release defendants upon the bond...