State ex rel. and to Use of Alport v. Boyle-Pryor Const. Co.

• Citation: 180 S.W.2d 727,352 Mo. 1061
• Decision Date: 05 June 1944
• Docket Number: 38765
• Parties: State of Missouri at the relation and to the use of A. J. Alport, Appellant, v. Boyle-Pryor Construction Company, a Corporation, R. W. Crimm, as the Acting President, J. J. Pryor and R. W. Crimm as the Last Board of Directors or Managers and as Trustees of said Boyle-Pryor Construction Company, a Corporation, and Hartford Accident and Indemnity Company, a Corporation
• Court: Missouri Supreme Court

180 S.W.2d 727

352 Mo. 1061

State of Missouri at the relation and to the use of A. J. Alport, Appellant, v. Boyle-Pryor Construction Company, a Corporation, R. W. Crimm, as the Acting President, J. J. Pryor and R. W. Crimm as the Last Board of Directors or Managers and as Trustees of said Boyle-Pryor Construction Company, a Corporation, and Hartford Accident and Indemnity Company, a Corporation

No. 38765

Supreme Court of Missouri

June 5, 1944

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Affirmed.

Taylor Mayer, Shifrin & Willer for appellant; Charles P. Williams of counsel.

(1) It is perfectly well settled, by the overwhelming weight of authority, that Mechanics' Lien Statutes are to be liberally construed. Fuhler v. Gohman & Levine Constr Co., 346 Mo. 588, 142 S.W.2d 482. (2) By analogy, and for the same reasons, a liberal construction is given, in favor of persons doing work, to bonds provided for public works. Standard Accident Ins. Co. v. United States for use of Powell, 302 U.S. 442. (3) The great weight of decision in this country is to the effect, that services rendered in superintending construction are within, and protected by, Mechanics' Lien Statutes. Breeding v. Melson, 143 A. 23; 60 A.L.R., p. 1252; Massachusetts Bonding & Ins. Co. v. Steele, 293 S.W. 647. (4) Such is the law of Missouri. Fagan v. Brock Motor Car Co., 282 S.W. 135; Carroll Constr. Co. v. Newsome, 201 Mo.App. 117, 210 S.W. 114; Leach v. Bopp, 223 Mo.App. 254, 12 S.W.2d 512; Fuhler v. Gohman & Levine Constr. Co., 346 Mo. 588, 142 S.W.2d 482. (5) In another connection, supervision of improvements has been held by this court to be "labor." Wandling v. Broaddus, 10 S.W.2d 651. (6) That same construction is given by the federal courts to the Heard (now Miller) Act (40 U.S.C. 270a). American Surety Co. v. United States, 76 F.2d 67; United States v. Shea-Adamson Co., 21 F.Supp. 831. (7) It is quite apparent that the requirement of two bonds, the forms of which are set out in the specifications (which were submitted to and approved by the Federal Public Works Administration) cannot be dismissed as meaningless. Both such bonds are required by the (Heard) Miller Act (40 U.S.C. 270a). One of these bonds -- the Performance Bond -- contains quite literally the requirements of R.S. 1939, Section 3277 (which was in effect at the date of the specifications). The other bond appears to follow the provisions of the Heard (Miller) Act. If the decision be rested solely upon the provisions of R.S. 1939, Section 3277, it must be observed that that statute contains the significant words "among other things," relating to the content and conditions of the bond required. Those words cannot possibly be rejected as meaningless, without doing violence to the most elementary canons of statutory construction. Those words plainly empower the parties, in the framing of the bond, to go beyond the conditions specified and imperatively required. Audrain County v. Walker, 155 S.W.2d 251; Hilton v. Universal Constr. Co., 202 Mo.App. 672, 216 S.W. 1034; Honey Creek Drain. Dist. v. Sampson, 5 S.W.2d 119. (8) If the work of appellant Alport falls within the coverage of the bond in suit, it makes no difference that his compensation, as an employee of the Construction Company, was based upon a percentage. Id certum, quod certum reddi potest. Many lien cases may be found, where percentage compensation was involved. Fagan v. Brock Motor Car Co., 282 S.W. 135; Wetzel & T. Ry. Co. v. Tennis Bros. Co., 145 F. 458; Tual v. Martin, 228 Mo.App. 30, 66 S.W.2d 969. (9) The surety company is bound by the contract between appellant Alport and the construction company. The price fixed by that contract, in the absence of fraud, is binding. State v. Southern Surety Co., 221 Mo.App. 67, 294 S.W. 123; Royal Indemnity Co. v. Woodbury Granite Co., 101 F.2d 689; St. Louis v. Southern Surety Co., 333 Mo. 180, 62 S.W.2d 432; Cabool School District v. United States F. & G. Co., 9 S.W.2d 103; Mitchell Planing Mill Co. v. Allison, 138 Mo. 50, 40 S.W. 118; Hilliker v. Francis Co., 65 Mo. 598. (10) The rule that a surety is a favorite of the law has no application to corporations organized to execute bonds as a business, and bonds executed by such a corporation are to be construed most strictly in favor of the obligee. Lackland v. Renshoiw, 256 Mo. 133, 165 S.W. 314; Noonan v. Independence Indemnity Co., 328 Mo. 706, 41 S.W.2d 162; Fidelity & Deposit Co. v. John Gill & Sons, 270 S.W. 700; Dorr v. Bankers Surety Co., 218 S.W. 398. (11) Appellant Alport's contract with the construction company was drawn up by the attorney for the construction company. It is, therefore, in case of doubt or ambiguity, to be construed most strongly against the construction company. John Deere Plow Co. v. Cooper, 230 Mo.App. 167, 91 S.W.2d 145; Wells v. Thomas W. Garland, Inc., 39 S.W.2d 409; Sternberg v. Drainage District No. 17, 44 F.2d 560; Busch v. Midland Finance Co., 64 F.2d 859; Southern Ry. Co. v. Berthold & Jennings Lbr. Co., 247 S.W. 219; Buhler Mill & Elevator Co. v. Jolly, 217 Mo.App. 240, 261 S.W. 353; Sanders v. Sheets, 287 S.W. 1069. (12) The appellant's contract looks toward future services. The reference to past work in estimating the costs for the purpose of bidding, was not, and could not have been, intended to reverse the arrangement of the parties, which had remained unchanged. The construction contended for by the surety company is narrow, and unnecessary. (13) The court should have permitted the lawyer for the construction company, who drew the appellant's contract, to testify as to his reason for inserting the "and for and in consideration of" clause in paragraph 6 of the contract. The offer of proof was to show by that witness that he put this clause in to preclude plaintiff from asserting a claim for work done prior to the contract, and did not refer to the expressed considerations for the work to be done under the contract. Actual consideration may always be shown by parol evidence. 1 Williston on Contracts (Rev. Ed.), sec. 115B.

Igoe, Carroll, Keefe & Coburn and Roberts P. Elam for respondent.

(1) If as plaintiff asserts, the labor bond upon which plaintiff seeks recovery in this suit is a bond required by the Miller Act, the judgment in favor of respondent surety company in this suit must be affirmed because state courts, under the specific provisions of that act, are without jurisdiction over actions to recover upon such bonds. 40 U.S.C.A., secs. 270a to 270d, inclusive. (2) The surety company cannot be held beyond its contract as defined in the conditions of the labor bond upon which this suit is brought. State ex rel. Southern Surety Co. of N.Y. v. Haid, 329 Mo. 1220, 49 S.W.2d 41; St. Louis v. Maryland Casualty Co., 122 S.W.2d 20. (3) The conditions of the bond are clear and unambiguous, and there is, therefore, no room for any construction of them. State ex rel. Natl. Life Ins. Co. v. Allen, 301 Mo. 631, 256 S.W. 737. (4) Whether or not the labor bond in question be considered as one given under our statute, it covered and secured payment for labor or services when, and only when, such labor or services were performed or rendered "in the prosecution of the work provided for by the construction contract." R.S. 1939, sec. 3277; Camden Consol. School Dist. No. 6 of Camden County ex rel. Powell Lbr. Co. v. New York Cas. Co., 340 Mo. 1070, 104 S.W.2d 319; St. Louis to use of Contracting & Supply Co. v. Hill-O'Meara Const. Co., 175 Mo.App. 555, 158 S.W. 98; Hilton v. Universal Const. Co., 202 Mo.App. 672, 216 S.W. 1034; St. Louis to use of Stone Creek Brick Co. v. Kaplan-McGowan Co., 233 Mo.App. 789, 108 S.W.2d 987. (5) The services performed by plaintiff, for which he was to be paid ten per cent (10%) of the profit on the project, were performed by him long prior to the award and execution of the construction contract, were not -- in fact, could not have been -- rendered "in the prosecution of the work provided for in said contract," and, therefore, were not covered by the bond. (6) Even if some of plaintiff's services, for which he was to be paid ten per cent (10%) of the profits on the project, should be regarded as coming within the bond, many of such services do not come within the bond, and, since the contract for the percentage of profit is an entire contract and does not apportion the bondable and nonbondable services, no recovery can be had on the bond for any of such services. Look v. City of Springfield, 292 Mass. 515, 198 N.E. 661; Adler v. World's Pastime Exposition Co., 126 Ill. 373, 18 N.E. 809; Libbey v. Tidden, 192 Mass. 175, 78 N.E. 313; Bennett v. Frederick R. Gerry Co., 273 Pa. 585, 117 A. 345; Boyle v. Mountain Key Mining Co., 9 N. Mex. 237, 50 P. 347; Edgar v. Salisbury, 17 Mo. 271; Nelson v. Withrow, 14 Mo.App. 270; Murphy v. Murphy, 22 Mo.App. 18; John O'Brien Boiler Works Co. v. Haydock, 59 Mo.App. 653; Knapp Bros. Mfg. Co. v. Kansas City Stockyards Co., 168 Mo.App. 146, 152 S.W. 119; Major v. McVey, 128 S.W.2d 347. (7) The error committed by the trial court in rendering opposing decisions as to the liability of the construction company and the surety company upon the labor bond, was error invited by, and favorable to, plaintiff, and, therefore, error of which plaintiff cannot complain. Furthermore, the surety company is not bound by the erroneous decision and judgment against the construction company, even though that decision and judgment are final as to the construction company because it has not appealed therefrom. United States to use of Fidelity Natl. Bank v. Rundle, 107 F. 227; United States to use of Vigilanti v. Pfeiffer-Neumeyer Const. Co., 25 F.Supp. 403. (8) The trial court committed no error in refusing to admit the oral testimony offered by plaintiff...