Southwestern Dredging Corp. v. Chicago, R.I. & P. Ry. Co.
| Decision Date | 24 April 1934 |
| Docket Number | 22112. |
| Citation | 32 P.2d 274,168 Okla. 217,1934 OK 257 |
| Parties | SOUTHWESTERN DREDGING CORPORATION v. CHICAGO, R.I. & P. RY. CO. et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied May 8, 1934.
Syllabus by the Court.
1. One who is not a party to a bond cannot maintain an action upon said bond without alleging and proving that it was executed for the use and benefit of third persons, and that he comes within the purview of the terms and conditions thereof.
2. One who hires his machinery and equipment to a construction company for a stipulated price to be used exclusively by the latter in grading or construction work on the roadbed of a railway, pursuant to its contract with the railway company is not entitled to a lien for such hire upon the roadbed buildings, equipment, etc., of said railroad.
Appeal from District Court, Oklahoma County; Wyley Jones, Judge.
Action by the Southwestern Dredging Corporation against the Chicago Rock Island & Pacific Railway Company and others. From an adverse judgment, plaintiff appeals.
Affirmed.
Spiers & Bodovitz, of Oklahoma City, for plaintiff in error.
W. R. Bleakmore, John Barry, W. L. Farmer, Robert E. Lee, J. H. Everest, Robt. K. Everest, Malcolm W. McKenzie, John Halley, and E. E. Gibbens, all of Oklahoma City, for defendants in error.
The plaintiff's petition in this case alleges, in substance that on the 27th day of March. 1929, T. E. Wiggins, Inc., and the Chicago, Rock Island & Pacific Railway Company entered into a contract for certain construction work on the Rock Island right of way at Oklahoma City. That at the same time, and as a part of the consideration for the execution of said contract, the American Employers' Insurance Company executed a bond guaranteeing the performance of the contract. A copy of said bond is attached to the petition and made a part thereof, marked "Exhibit A." The conditions of said bond, as recited therein, are as follows: "Now, therefore, if said principal shall in all respects faithfully and fully perform each and all of the terms, provisions, conditions and undertakings of said contract in writing to be by it kept and performed, then this obligation shall be null and void; otherwise to remain in full force, virtue and effect." Plaintiff further alleges in substance that on the 1st day of September, 1929, said T. E. Wiggins, Inc., entered into a contract with the plaintiff for the rental of certain equipment to be used under said contract above referred to and to be used on the right of way of said Railway Company. A copy of said contract is attached to the plaintiff's petition, marked "Exhibit B" and made a part thereof. That there is due from T. E. Wiggins, Inc., a balance of $4,000 and interest; that said sum has not been paid, although demand therefor has been made, and plaintiff alleges that by reason of the execution and delivery of the above bond said surety company became liable and bound to pay all the claims for labor and material under said contract and for labor and material performed and used under said contract.
Plaintiff further alleges that under the lien law of the state of Oklahoma its claim is by statute made a lien on the right of way, roadbed, equipment, etc., of the defendant Railway Company; that a statutory notice of a lien claimed was served on said Railway Company on March 19, 1930, a copy of said notice of lien is attached to the plaintiff's petition, marked "Exhibit C" and made a part thereof; and plaintiff prays judgment against T. E. Wiggins, Inc., and the American Employers' Insurance Company in the sum of $4,000, with interest, and for judgment declaring the same to be a lien against the roadbed, right of way, etc., of the defendant Railway Company, and for $500 attorney's fee.
Each of the defendants filed separate demurrers to the petition of the plaintiff on the ground that the petition did not state facts sufficient to constitute a cause of action against the defendants in favor of plaintiff.
The demurrer as to the defendant T. E. Wiggins, Inc., was by the court overruled, and at a later date the cause of action against T. E. Wiggins, Inc., was dismissed by the plaintiff without prejudice.
The lower court sustained the demurrer of each of the other defendants; plaintiff declined to plead further, gave notice of intention to appeal, etc.; and this case is now before this court for review on the question of whether or not the lower court committed error in sustaining the demurrers of the defendants American Employers' Insurance Company and the Chicago, Rock Island & Pacific Railway Company.
It will be observed that the only allegations as to the contract for construction work between T. E. Wiggins, Inc., and the Chicago, Rock Island & Pacific Railway Company is that they entered into a contract for certain construction work on the Rock Island right of way at Oklahoma City; nor is there any copy of said contract attached to the plaintiff's petition. This being true, this court cannot hold that said contract was entered into for the use and benefit of third persons.
In the bond executed, T. E. Wiggins, Inc., was obligor and the defendant Railway Company was obligee, and it in effect simply guarantees the performance of the contract entered into by the Wiggins Company and the defendant Railway Company, and the petition does not allege facts sufficient to show that there was any privity of contract between the plaintiff and the defendant American Employers' Insurance Company, as surety, nor does the bond or any of the exhibits attached to plaintiff's petition so show.
We are therefore of the opinion, and hold, that the demurrer of the American Employers' Insurance Company to the plaintiff's petition was properly overruled. Merchants' Union Trust Co. v. New Philadelphia Graphite Co., 10 Del. Ch. 18, 83 A. 520; Evans v. U S., 42 Ct. Cl. 287; Kruschke v. Quatsoe, 49 Colo. 312, 112 P. 769; Sheppard v. Holt et al., 119 Okl. 168, 249 P. 302; Arkansas Valley Smelting Co. ...
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