Tulsa Boiler & Mfg. Co. v. Shaffer

• Decision Date: 15 April 1919
• Docket Number: 9031.
• Citation: 180 P. 379,72 Okla. 235,1919 OK 117
• Parties: TULSA BOILER & MFG. CO. v. SHAFFER et al.
• Court: Oklahoma Supreme Court

180 P. 379

72 Okla. 235, 1919 OK 117

TULSA BOILER & MFG. CO. v. SHAFFER et al.

No. 9031.

Supreme Court of Oklahoma

April 15, 1919

Syllabus by the Court.

One who sells material to a public contractor is charged with knowledge of the statutory duty of the contractor to give a bond as required by section 3881, Rev. Laws 1910, and to have the same filed with the clerk of the district court, as required by section 3882 of said laws, and when such contractor gives a bond that is neither conditioned as required by said section 3881, supra, nor filed with the clerk of the district court, as required by section 3882 supra, a materialman who sells such contractor material which goes into the construction of the public improvement contracted for, is not entitled to recover damages from the individual officers who failed to secure and have filed the bond as provided by the provisions of said sections.

Error from District Court, Pontotoc County; J. W. Bolen, Judge.

Action by the Tulsa Boiler & Manufacturing Company against W. L Shaffer and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Blake & Sneed, of Tulsa, for plaintiff in error.

Robt. Wimbish and W. C. Duncan, both of Ada, for defendants in error.

RAINEY J.

In August, 1910, one C. A. Reese entered into a written contract with the incorporated town of Francis, Okl., which was executed by the president of the board of trustees and the town clerk of said town, whereby the said C. A. Reese was to construct a waterworks system for said town, and to furnish the material and labor therefor, and at the same time executed a bond to said town with the Southern Surety Company as surety, conditioned that the said C. A. Reese would indemnify and save harmless the town of Francis from any pecuniary loss from the breach of any of the terms, covenants, and conditions required by said contract to be performed by the said C. A. Reese as principal. There were other conditions in the bond for the benefit of the surety not material to a decision of this case.

After the execution of the contract and the giving of the bond aforementioned, Reese purchased from the Tulsa Boiler & Manufacturing Company certain supplies which he used in the construction and erection of the waterworks system, for which he failed and refused to pay. Thereafter said Tulsa Boiler & Manufacturing Company recovered judgment against him in the district court of Tulsa county in the sum of $2,329.02, including interest and costs. Subsequently the said Tulsa Boiler & Manufacturing Company, as plaintiff, filed its petition in the district court of Pontotoc county against W. L. Shaffer, T. E. Miller, W. P. Chisom, J. C. Rushing, S.W. Rodgers, H. R. Hochstrosser, O. D. Wright, and J. H. Norman, as members of the board of trustees of the incorporated town of Francis, Okl., wherein, after setting forth the foregoing matters, it was alleged that the said C. A. Reese was insolvent, and that he had no property out of which the judgment could be satisfied; that under the provisions of sections 6164 and 6165, Comp. Laws of Oklahoma 1909, the defendants owed the plaintiff the duty to take a bond from the said C. A. Reese, conditioned as prescribed by section 6164 of said laws, and to require that such bond be filed in the office of the district clerk of Pontotoc county, Okl., as required by section 6165 of said laws; that, although the defendants took a bond, they negligently failed to take a bond conditioned as prescribed by law and to have any bond filed as required by section 6165, supra, all to the damage of the plaintiff in the amount aforesaid. The trial court sustained the defendants' demurrer to plaintiff's petition, which alleged in substance the foregoing facts, and dismissed the action, to reverse which judgment the cause has been brought to this court.

Sections 6164 and 6165, Comp. Laws Oklahoma 1909, are substantially the same as sections 3881 and 3882, Rev. Laws Oklahoma 1910, which read as follows:

"3881. Whenever any public officer shall, under the laws of the state, enter into contract in any sum exceeding one hundred dollars, with any person or persons, for purpose of making any public improvements, or constructing any public buildings or making repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureties to the state of Oklahoma, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvements.

3882. Such bond shall be filed in the office of the clerk of the district court of the county in which such public improvement is to be made or such public building is to be erected; and any person to whom there is due any sum for labor or material furnished, as stated in the preceding section, or his assigns, may bring an action on said bond for the recovery of said indebtedness: Provided, that

...