Smith v. Oosting

• Decision Date: 03 April 1925
• Docket Number: No. 129,Oct. Term.,129
• Citation: 230 Mich. 1,203 N.W. 131
• Parties: SMITH v. OOSTING et al.
• Court: Michigan Supreme Court

230 Mich. 1

203 N.W. 131

SMITH

v.OOSTING et al.

No. 129, Oct. Term.

Supreme Court of Michigan.

April 3, 1925.

Error to Circuit Court, Van Buren County; Glenn E. Warner, Judge.

Action by Frank Smith against Frank Oosting and others. Judgment for plaintiff, and both parties bring error. Reversed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Earl L. Burhans and David Anderson, both of Paw Paw, for plaintiff.

Diekema, Kollen & Ten Cate, of Holland, for defendants.

BIRD, J.

Defendants Oosting & Hofsteen contracted with the state to construct eight miles of improved highway lying between Decatur and Glenwood. They gave the usual statutory bond prescribed by C. L. 1915, § 14829. The other defendants are sureties thereon.

The contractors sublet to one Rodney McLeod, who owned a fleet of trucks, the job of hauling the gravel from the railroad cars and distributing it on the highway.

Plaintiff was a vendor of gasoline, and furnished McLeod gasoline with which to operate his trucks. After he had furnished gasoline to the value of $1,000, McLeod paid $300 thereon. This was not satisfactory to plaintiff, and he sought an interview with Oosting & Hofsteen, and said to them that he could not furnish McLeod any more gasoline, unless some more satisfactory arrangement was made about making payment therefor. It is plaintiff's claim that this talk resulted in an agreement whereby Oosting & Hofsteen agreed that, if plaintiff would continue to furnish McLeod gasoline for his trucks, they would deduct it from McLeod's contract when the job was finished. In reliance upon this promise plaintiff continued to furnish gasoline to McLeod until it amounted to $1,646.28.

One Archie Wolf furnished gasoline to McLeod at Decatur with which to operate his trucks until he was owing $728.84. This claim was assigned to plaintiff.

Defendants failed to make good their promise, and plaintiff began this suit to recover for these two items of gasoline. The declaration counted on the bond which defendants had given, also upon defendants' promise to retain enough from McLeod's contract to pay his claim.

The trial court refused to permit plaintiff to recover on the bond, and refused to permit a recovery on the Wolf claim, but submitted to the jury plaintiff's claim that defendants had promised him to retain sufficient to pay his claim. The jury returned a verdict for plaintiff. Both parties have assigned error.

Was plaintiff entitled to recover on the bond? The condition of the bond was in compliance with the statute, and in the following form:

‘Now, therefore, the condition of this obligation is such that, if there shall be paid, as the same may become due and payable, all indebtedness which may arise from said contractor to a subcontractor or party furnishing labor or furnishing materials, or from any subcontractor to any person, firm or corporation on account of any labor or materials furnished in the erection, repairing or ornamentation of such building, improvement or works, then this obligation to be void, otherwise to remain in full force and effect.’

The argument is made by plaintiff that the gasoline furnished and consumed in furnishing power to convey the gravel became a part of the highway, and enhanced the value of the same, and should be regarded as materials going into it.

The defendants take issue with plaintiff on this contention, and insist that the question has been settled by this court adversely to plaintiff's contention.

The contract by which defendants undertook the work of building the highway contemplated that the gravel should be transported from the railway cars to the highway. It required power to do this, and the gasoline in question furnished the power. It is true that the gasoline was not visible after the highway was finished, but it was as visible as the labor which was bestowed upon it. It was used directly upon and for the highway, and was instrumental in producing the final result. In most jurisdictions powder and dynamite used for blasting have been regarded as ‘materials furnished.’ The use of gasoline to convey materials with which to build this highway contributed to and enhanced its value in the same way that powder and dynamite do in blasting for highways. Neither is physcially incorporated into the highway, but both are wholly consumed in aid of the work. The gasoline contributed to and enhanced the value of the highway as much as though the gravel had been moved by man power or horse power. The statute contempletes that labor and materials used in constructing, repairing, or ornamenting a building, improvement, or works shall be protected by the bond. As the gasoline in question materially aided in the construction and building of the highway, and enhanced its value, it should be regarded as ‘materials furnished,’ within the meaning of the statute.

Thee is an interesting discussion of this question in Johnson v. Starrett, 127 Minn. 138, 149 N. W. 6, L. R. A. 1917B, 708. A lien was there claimed for gasoline used in propelling trucks, and dynamite for blasting and excavating for a cellar. There was also a claim made for parts and repairs for the steam shovel. The court held no lien could be declared for the parts or repairs on the steam shovel, as those went to enhance the value of plaintiff's personal property, and because they survived the work in which they were engaged. A lien was allowed for the gasoline and dynamite furnished. In the course of the opinion it was said:

‘From a practical standpoint we think it cannot be justly said, under the plain terms of the statute, that those...