State v. Gillioz, 22356.

• Decision Date: 31 May 1933
• Docket Number: No. 22356.,22356.
• Citation: 60 S.W.2d 696
• Parties: STATE ex rel. and to Use of WORTHMANN v. GILLIOZ et al.
• Court: Missouri Court of Appeals

60 S.W.2d 696

STATE ex rel. and to Use of WORTHMANN v. GILLIOZ et al.

No. 22356.

St. Louis Court of Appeals. Missouri.

May 31, 1933.

Rehearing Denied June 13, 1933.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be published in State Reports."

Action by the State, at the relation and to the use of William F. Worthmann, against M. E. Gillioz and another. From an adverse judgment, plaintiff appeals.

Affirmed.

E. H. Wayman, of St. Louis, for appellant.

James E. Sater, of Monett, for respondent Gillioz.

George A. Hodgman, of St. Louis, for respondent Fidelity & Casualty Co. of New York.

BENNICK, Commissioner.

This is an action upon a highway contractor's bond which was executed on October 9, 1925, pursuant to the provisions of the statute which appears as section 2890, R. S. 1929 (Mo. St. Ann. § 2890). As so carried in the latest revision, the section takes the place of section 1040, R. S. 1919, which was repealed and re-enacted by the Fifty-third General Assembly (Laws 1925, p. 127), the effect of the change in the language of the section being to extend the coverage of the bond to certain items specifically mentioned when used or consumed in the construction of the work.

No point is made about the sufficiency of the pleadings, and consequently any reference to their contents is unnecessary.

A jury having been waived, the case was submitted to the court upon an agreed statement of facts, which disclosed that on October 9, 1925, defendant Gillioz, a general contractor, entered into contracts with the state of Missouri through the state highway commission for the construction of three sections of State Highway No. 12 in Gasconade county, and agreed therein to furnish all materials and do all work necessary in the construction of said sections of said highway.

Attached to the said contracts were bonds executed conformably to the statute heretofore referred to, with Gillioz as principal and Fidelity & Casualty Company of New York as surety, the condition of each of which was as follows: "The condition of this obligation is such that if the said bounden principal shall, in all things, properly and promptly complete said work in accordance with the provisions of the within and foregoing contract and the plans and specifications, and shall well and truly perform all the terms and conditions of the said contract to be by him performed, and within the time therein mentioned, or within any additional time granted by the State Highway Commission of Missouri or its duly authorized agent, which may be granted without notice to or consent from the surety, and shall pay for materials, lubricants, oil, and gasoline used or consumed in the construction of such work, and for all labor performed in such work, whether by subcontractor or otherwise, under the operation of the laws of the State of Missouri, then this obligation is void; otherwise, it shall be and remain in full force and effect."

Though there were three separate bonds, one for each of the contracts covering the construction of a particular section of the highway, the parties have treated the question of their alleged breach as giving rise to but a single cause of action, upon the theory that they were all executed at the same time and constituted part and parcel of the same transaction, and that work was being done under all of said contracts at the time relator furnished the items making up his account and alleged to have been used or consumed in the construction of the work.

Following the execution of said contracts and bonds, Gillioz sublet the work to certain subcontractors, doing business as McCoy-Thornton Construction Company, by whom the work was completed. The relator, William F. Worthmann, is a merchant engaged in the sale of general merchandise, groceries, and the like in the town of Rosebud in Gasconade county; and the items sued for were sold and delivered by Worthmann to McCoy and Thornton at their special instance and request.

The account in issue, which is for the sum of $1,071.79, represents the reasonable value of food and supplies, or groceries, which were furnished by Worthmann to the subcontractors, and which were necessary for the maintenance of the camp and the laborers kept therein; and the only issue between the parties is whether or not the terms of the bonds are such as to have entailed liability upon defendants for payment of such items.

As regards the question of the peculiar conditions if any, attending the supply of such items in this particular case, the agreed statement of facts disclosed as follows: "It is agreed that if the plaintiff was present and his testimony competent, he would testify that the total length of said State Highway No. 12 is and was approximately twelve (12) miles, with the Town of Drake, Gasconade County, Mo., at the western terminus thereof, and the town of Rosebud, Gasconade County, Mo., at the eastern terminus thereof; that the course of said three sections of said State Highway No. 12 was through farming country where there were no towns along the course of said sections of said highway, and where board and lodging for the number of laborers employed in such construction work was not available and readily accessible to the construction work, and that...