Theodore J. Molzahn & Sons, Inc. v. K. W. Constr. Co.

• Decision Date: 03 April 1934
• Citation: 254 N.W. 101,214 Wis. 603
• Court: Wisconsin Supreme Court
• Parties: THEODORE J. MOLZAHN & SONS, INC., v. K. W. CONSTRUCTION CO. ET AL.

214 Wis. 603

254 N.W. 101

THEODORE J. MOLZAHN & SONS, INC.,

v.K. W. CONSTRUCTION CO. ET AL.

Supreme Court of Wisconsin.

April 3, 1934.

Appeal from a judgment of the Circuit Court for La Crosse County; R. S. Cowie, Circuit Judge.

Action by Theodore J. Molzahn & Sons, Inc., against the K. W. Construction Company and the Maryland Casualty Company. From a judgment for plaintiff against the K. W. Construction Company, but dismissing its complaint against the Maryland Casualty Company, plaintiff appeals.--[By Editorial Staff.]

Reversed, with directions.

Action to recover from the K. W. Construction Company and its surety, the Maryland Casualty Company, for rental of equipment, which was used by the K. W. Construction Company in performing its work, under a contract between it, as a subcontractor, and the Lakeside Bridge & Steel Company, in the construction of a public highway bridge, which the latter, as the principal contractor, had agreed to construct. Upon a trial, without a jury, plaintiff recovered judgment against the K. W. Construction Company for the rental of the equipment. However, plaintiff's complaint against the surety was dismissed, and plaintiff appealed from that part of the judgment.

Fred G. Silberschmidt and Lees & Bunge, all of La Crosse, for appellant.

Charles F. Millmann, of Milwaukee, for respondent.

FRITZ, Justice.

[1][2] The subcontractor, in its contract with the principal contractor, agreed “to furnish and pay for all costs or rentals of equipment * * * required for the construction * * *” of the work to be performed by the subcontractor, and also agreed to “furnish a surety company bond guarantying the full, complete and faithful performance of this agreement. * * *” By those provisions the subcontractor expressly obligated itself (1) to “pay for all rentals of equipment required for the construction of the subcontract work,” and (2) to furnish a surety bond guarantying “the full, complete performance of this agreement.” Manifestly the latter provision clearly required the bond to guarantee full performance of the subcontractor's contract to pay all rentals for equipment, as well as full performance by the subcontractor in all other respects required by its subcontract.

In compliance with that contract, the subcontractor executed and furnished the bond in suit, with the Maryland Casualty Company as surety. The condition of that bond is as follows: “If the Principal shall faithfully perform the foregoing contract with Lakeside Bridge & Steel Company, do all the work, furnish and perform all the materials and services and make all the payments for materials, equipment, facilities, labor and services, all as in said contract provided, and indemnify and save harmless Lakeside Bridge & Steel Company from all loss, cost, disbursement, damage and expense, including attorney's fees, resulting from any failure of the Principal to fully and faithfully perform said contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect.”

There is nothing in that bond which excludes from its guaranty of performance of the subcontract by the subcontractor the requirement therein to “pay for all rentals of equipment.” Such rentals are clearly within the words in condition in the bond, “if the principal shall faithfully perform the foregoing contract * * * and make all the payments for materials, equipment,” etc. There is no ambiguity whatsoever in that respect. That being true, plaintiff as a third party is entitled to the benefit of those provisions in the subcontractor's contract and the bond. Concrete Steel Co. v. Illinois Surety Co., 163 Wis. 41, 157 N. W. 543;U. S. Gypsum Co. v. Gleason, 135 Wis. 539, 116 N. W. 238, 17 L. R. A. (N. S.) 906;Connor Co. v. Ætna Indemnity Co., 136 Wis. 13, 115 N. W. 811;Warren-Webster & Co. v. Beaumont Hotel Co., 151 Wis. 1, 138 N. W. 102;Builders' L. & S. Co. v. Chicago B. & S. Co., 167 Wis. 167, 166 N. W. 320;Northwestern B. & I. Co. v. Maryland Casualty Co., 171 Wis. 526, 177 N. W. 31;Building Contractors' v. Southern Surety Co., 185 Wis. 83, 200 N. W. 770;Kieckhefer Elevator Co. v. Music Arts Corp. (Wis.) 252 N. W. 591, 592;Weary & Alford Co. v. Sixth & Wisconsin Tower, Inc. (Wis.) ...