U.S. Fid. & Guaranty Co. v. Cagg
| Decision Date | 19 October 1937 |
| Docket Number | Case Number: 27432 |
| Parties | UNITED STATES FIDELITY & GUARANTY CO. v. CAGG |
| Court | Oklahoma Supreme Court |
¶0 BRIDGES - Liability on Statutory Contractor's Bond Held not to Extend to Repairs Made on Equipment Used in Construction of Project.
The liability of a surety on a bond executed pursuant to the provisions of section 10983, O. S. 1931, does not extend to repairs made on equipment used by the contractor in the construction of the project covered by such bond.
Appeal from District Court, Custer County; W.P. Keen, Judge.
Action by W.E. Cagg against the Green Construction Company and U.S. Fidelity & Guaranty Company to recover for work and material in making repairs on trucks of the construction company and which were used on public improvement. The U.S. Fidelity & Guaranty Company appeals from the judgment holding it liable on statutory bond. Reversed, with directions.
A.J. Welch, for plaintiff in error.
Meacham, Meacham & Meacham, for defendant in error.
¶1 This is an appeal from a judgment of the district court of Custer county. The question involved is the liability of the surety on a statutory bond. The essential facts will be briefly stated. On October 5, 1931, the Green Construction Company entered into a contract with the board of county commissioners of Custer county whereby it contracted to build and construct a bridge over and across the South Canadian river. The contract involved more than $100, and therefore the contractor was required to furnish a bond pursuant to the provisions of section 10983, O. S. 1931. The United States Fidelity & Guaranty Company, as surety, executed said bond. The defendant in error operated a garage and machine shop at Thomas, Okla., near the point where the bridge in question was to be erected, and the said shop performed certain work and labor and furnished certain material in the overhauling and repairing of three trucks belonging to the Green Construction Company and used by it in connection with the construction of said bridge. Payment for the work and labor so performed and the materials and supplies so furnished and used was not made, and thereupon suit was brought therefor by the defendant in error against the Green Construction Company and the United States Fidelity & Guaranty Company, the surety on its statutory bond. The Green Construction Company filed an answer, but made no defense to the action and permitted judgment to go against it. The United States Fidelity & Guaranty Company appeared and contested the action on the ground that the work and labor performed and the materials and supplies furnished and used were not performed or furnished or used in the project for which it had executed the bond. The cause was tried to the court without the intervention of a jury and resulted in a judgment in favor of the defendant in error and against the plaintiff in error as well as the Green Construction Company. The United States Fidelity & Guaranty Company alone appeals.
¶2 Six specifications of error are assigned, but these present only a single question for determination, that is, whether the labor performed and the material furnished in the repair and overhauling of the trucks of the construction company are to be classed as labor performed and material furnished in the construction of the bridge, and therefore within the terms of the bond executed by plaintiff in error. If the question is answered in the affirmative, the judgment of the trial court should be affirmed. Otherwise, it should be reversed.
¶3 The statute (section 10983, O. S. 1931) requires that the bond be "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 improvement." The liability of the principal and surety under a bond given pursuant to the aforesaid statute is not confined to labor and materials for which a lien ordinarily could be claimed. Federal Surety Co. v. St....
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...of said * * * public improvements." 3 Green Construction Co. v. Chorn, 173 Okl. 85, 46 P.2d 499, 500; United States Fidelity & Guaranty Co. v. Cagg, 181 Okl. 569, 75 P.2d 412, 414; United States Fidelity & Guaranty Co. v. Ed Hockaday & Co., 182 Okl. 73, 76 P.2d 911, 4 L. P. Friestedt Co. v.......
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Tom P. McDermott, Inc. v. Bennett
...equipment. In defense of the correctness of the judgment appealed from defendants cite and quote from United States Fidelity & Guaranty Co. v. Cagg, 181 Okl. 569, 75 P.2d 412, p. 414, as 'Such liability includes all materials used in the work and all labor performed on such work whether by ......
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U.S. Fidelity & Guaranty Co. v. Cagg
... ... fact that the repairs made on the equipment consisted of ... complete overhauling jobs on three different trucks. Under ... the record before us and the authorities above cited, we are ... of the opinion that the defendant in error as a matter of law ... was not entitled to a judgment in any ... ...