State ex rel. Kingsley v. The Carterville Construction Co.

• Decision Date: 27 May 1926
• Citation: 284 S.W. 150,220 Mo.App. 244
• Parties: STATE OF MISSOURI EX REL. JAY KINGSLEY, RESPONDENT, v. THE CARTERVILLE CONSTRUCTION COMPANY AND SOUTHERN SURETY COMPANY, APPELLANTS.
• Court: Missouri Court of Appeals

284 S.W. 150

220 Mo.App. 244

STATE OF MISSOURI EX REL. JAY KINGSLEY, RESPONDENT, v. THE CARTERVILLE CONSTRUCTION COMPANY AND SOUTHERN SURETY COMPANY, APPELLANTS.

Court of Appeals of Missouri, Springfield

May 27, 1926

Appeal from the Circuit Court of Lawrence County.--Hon. Charles L Henson, Judge.

AFFIRMED (on condition).

A. M Baird and Owen & Davis for appellants.

(1) Plaintiff cannot, under the terms of the bond sued on recover for the use of the traction engine, and defendant's declaration of law numbered 3 should have been given. The liability of defendant Surety Company is measured by the terms of the bond sued on, and it cannot be held liable for any thing that is not within the express terms of the bond. Its liability cannot be extended by implication beyond these limits, or to subjects other than those expressly stated in the bond. Kansas City v Youmans, 213 Mo. 166. The bond here in question provides that the principal shall "pay all lawful claims for materials used and labor performed," etc. "Labor performed" means, of course, manual labor and not mechanical labor of machines and appliances. A "laborer" has been defined to be one who labors with his physical powers and under direction of another at a fixed wage. Kansas City v. McDonald, 80 Mo.App. 444; Rogers v. Railroad, 27 L. R. A. 528; Missouri State Highway Commission v. Coopers, etc., 268 S.W. 702. The claim of an architect for preparing plans and specifications for a building is not labor performed within the meaning of our Mechanic's Lien Statute. 6 Mo.App. 445. The claim of an agent employed to disburse money and pay men employed in the building of a house is not a laborer within the meaning of the Mechanic Lien Statute of this State. Edgar v. Salsbury, 17 Mo. 271. The hire of tools, machinery and appliance used in the construction of buildings are not lienable under Mechanic Lien Statutes. 27 Cyc. 46; McSuliff v. Jorgenson, 82 N.W. 706. The hire of an ox team is not lienable under mechanic lien statute. 58 N.W. 407. Sureties on bonds of contractors, under section 20 of article 9 of the Charter of Kansas City, are not liable for the hire of "teams and wagons" used in the construction of public works. Kansas City v. Youmans, 213 Mo. 158, 159. A lien for the price of lubricating oil furnished for use on machinery in a mill is not given by a statute giving a lien for materials furnished for the protection of any building or machinery which becomes a part of the freehold. Standard Oil Co. v. Lane, 7 L. R. A. 191. It was contended, in Kansas City ex rel. v. Youmans, 213 Mo. 151, that ropes, picks, pick handles, chains, buckets, spades, track spikes, etc., which had been worn out and consumed in the construction of the sewer there in question, were within the terms of the contractor's bond, which required that he pay for all "materials" used in the construction of the sewer in question, but this contention was not upheld--the court held that the terms of the bond could not be so enlarged by construction as to include said items, even against a surety for hire. The bond sued on is not one prepared by defendant, to be construed liberally and strongly against defendant under the rule governing the construction of contracts prepared by surety and insurance companies, for hire, but is one prepared by the Missouri State Highway Commission under and in accordance with a statute of this state, and is to be construed the same if defendant was a gratuitous surety or guarantor. Kansas City ex rel. v. Youmans, 213 Mo. 151, 166, 167; State ex rel. v. Ellison, 269 Mo. 410, 420; School Dist. No. 18 v. McClure, 224 S.W. 831; State ex rel. v. Trimble, 297 Mo. 659; State ex rel. v. Allen, etc., 305 Mo. 607; Gimbel Bros. v. Mitchell, 203 Mo.App. 620; Stearns on Suretyship, sec. 233, pages 404, 405, 402, 411; Lonergan v. San Antonio, etc., 22 L. R. A. (N. S.) 364, 372, col. 1. (2) The judgment is, at least, excessive to the extent of the value of the use of the traction engine described in the evidence, and the cause should either be reversed, or a remittur ordered. (3) The petition does not state facts sufficient to constitute a cause of action, and defendant's demurrer thereto should have been sustained. (4) The plaintiff has not the legal capacity to sue and maintain this action, and the cause should be reversed on account thereof.

Robert Stemmons and William B. Skinner, for respondents.

The bond, in this case, is a statutory bond, and should be construed in the light of said statute. Section 1040, R. S. 1919. The respondent was authorized, by statute, to institute this action. Section 1041, R. S. 1919. Payment of the contract price in full to the sub-contractor by The Carterville Construction Company, is no defense to this action. Kansas City v. Youmans, 213 Mo. 151; City of St. Louis to the use of Contracting and Supply Company v. Hill-Omeara Construction Company, 175 Mo.App. 555, and cases therein cited; Geller Ward & Hasner Hardware Co. v. Trust Company of St. Louis, 234 S.W. 1019. Appellant was entitled to recover for his personal labor, and for the use of his engine, and for the fuel. 216 S.W. 1034.

BRADLEY, J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.--

This is a suit by an employee of a subcontractor on the bond of an original road construction contractor. The cause was tried before the court without a jury. Plaintiff recovered and defendants appealed.

We shall refer to relator Kingsley as plaintiff. Defendant Carterville Construction Company in 1923 contracted with the state highway department to do certain work on state highway No. 14 in Lawrence county, and said construction company gave bond as required by section 1040, Revised Statutes 1919. The construction company sublet to a firm styled Williams & Ward, and this firm employed plaintiff to work upon the road. Plaintiff put in 220 hours pulling a grader with his traction engine and was to receive the agreed compensation of $ 2 per hour for this service. The construction company paid Williams & Ward, but this firm did not pay plaintiff, and this suit upon the bond followed.

Defendants filed separate answers to the effect that plaintiff's relations were with the subcontractor and that said subcontractor had been paid in full and that, therefore, plaintiff had no recourse on the bond. The further defense was made that neither the statute nor the bond covers the hire of the traction engine.

The bond follows the statute and one of the conditions is that the principal "shall pay all lawful claims for materials or labor performed in the construction of said highway."

At the close of the case defendants asked declarations to the effect (1) that under the law and the evidence plaintiff could not recover; and (2) that in no event could plaintiff recover for the use of his traction engine. Both of these declarations were refused.

Defendants rely upon Berger Manufacturing Company v. Lloyd, 209 Mo. 681, 108 S.W. 52, and plaintiff relies upon Kansas City to use, etc. v. Youmans, 213 Mo. 151, 112 S.W. 225 and St. Louis to use, etc. v. Hill-O'Meara Construction Company, 175 Mo.App. 555, 158 S.W. 98. In the Lloyd case it appears that Lloyd entered into a contract for the erection of a school house and gave bond. The Querheim Sheet Metal Works Company contracted with Lloyd to furnish the metal work called for in Lloyd's contract with the board of education. The metal works company purchased from the Berger Manufacturing Company the metal that went into the building. Lloyd paid the metal works company, but that company did not pay the Berger Manufacturing Company and that Company brought suit on Lloyd's bond on the theory that it was a materialman within the preview of Lloyd's contract and bond. It was held that plaintiff could not recover. In making disposition of Lloyd's case the Supreme Court used this language: "If Lloyd is liable under the bond to plaintiff for the material it sold to the metal company, then under the same process of reasoning he would also be liable to the jobber or manufacturer who sold the materials to the plaintiff and so on ad infinitum, and he and his securities would never reach the end of their liability."

St. Louis to use of Contracting & Supply Company v. Hill-O'Meara Construction Company, 175 Mo.App. 555, 158 S.W. 98, above referred to, on the facts is somewhat similar to the cause at bar. In that case it appears that the Hill-O'Meara Construction Company entered into a contract with the city of St. Louis for the construction of certain additions to the insane asylum of said city. The contract contained the bond, a condition of which was that the construction company would faithfully perform the contract and pay to the proper parties all amounts due for material and labor. The Hill-O'Meara Construction Company sublet to Smith & Watson Company the plastering provided for in the contract. The opinion recites that after the subletting of the plastering portion of the contract the Contracting & Supply Company, the relator, in reliance upon the contract of Smith & Watson Company with the Hill-O'Meara Construction Company and the contract of the Hill-O'Meara Company with the city and also the bond, furnished certain material which went into the building. Smith & Watson Company, the subcontractor, did not pay relator for the material furnished, and relator sought recovery on the original contractor's bond.

Defendant in the Hill-O'Meara case also relied upon the Lloyd case. Judge ALLEN the author of the opinion in the Hill-O'Meara case distinguished his case from the Lloyd case as follows:

"Appellants rely solely upon the decision of the Supreme Court in Berger Manufacturing Co. v. Lloyd, 209 Mo. 681, 108 S.W. 52. The facts of that case do not fully appear in the...