Wiss v. Royal Indeminty Co.
| Decision Date | 02 March 1926 |
| Docket Number | No. 19340.,19340. |
| Citation | 282 S.W. 164 |
| Parties | WISS. v. ROYAL INDEMNITY CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Lewis County; J. A. Cooley, Judge.
Action by Joseph H. Wiss against the Royal Indemnity Company. Judgment for plaintiff, and defendant appeals. Reversed.
H. S. Rouse, of Canton, and C. H. Dickey, of Keokuk, Iowa, for appellant.
Hilbert & Hilbert, of Canton, for respondent.
This is an action brought by plaintiff below against the defendant, Royal Indemnity Company, as surety on a contractor's bond, for hay, oats, and salt sold and delivered to a subcontractor as feed for his horses and mules used in the work of grading and hauling materials in the construction of a road. A judgment resulted for plaintiff, and the defendant appeals.
The sole assignment of error is that, since it is conceded that the account sued on was solely for hay, oats, and salt that was sold and delivered to subcontractors, which was used by them in feeding the horses and mules used by them on the work of constructing a road under a contract with the Missouri state highway commission, such items do not, as a matter of law, fall within the terms of the bond, and therefore no recovery for such items can be had against the surety on the bond.
The Missouri state highway commission entered into a written contract with O. J. Hanick for the construction of a gravel highway in Lewis county, Mo., designated as project No. 38. At the time of the execution of said contract, a bond was given to the Missouri state highway commission, signed by Hanick as principal and the Royal Indemnity Company as surety, conditioned, among other things, for the faithful performance of the terms and conditions of said contract, and that the principal and surety "shall pay all lawful claims for materials furnished or labor performed in the construction of said highway. * * *" It may be well to note that the contract, among other things, provides that the contractor is required to provide all necessary machinery, tools, apparatus, and other means of construction.
The firm of Thompson & McDaniel was engaged in the construction of the project No. 38 in question as subcontractors under Hanick, and the hay, grain, and salt making up the items of the account herein sued upon were fed to the horses and mules belonging to said subcontractors while said horses and mules were being used in grading and hauling work on said highway.
Appellant contends that the bond in question is a common-law bond, because not taken to the state, county, city, township, school, or road district as provided by section 1040, Revised Statutes of Missouri 1919, but is taken in the name of and to the Missouri state highway commission, "which is a municipal corporation with power to sue and be sued and to contract and to be contracted with."
It is true that the bond is taken in the name of the Missouri state highway commission, whereas section 1040, Revised Statutes of Missouri 1919, requires the execution of the bond to the state, county, city, town, township, school, or road district, as the case may be, but the bond does, however, in all respects measure up to the requirements of section 10898, Revised Statutes of Missouri 1919 (), which section requires that:
The "successful bidder shall enter into a bond * * * and conditioned for the faithful performance of the contract, * * * and the payment for all material and labor furnished and performed in the completion of said contract, and giving the right of action to materialmen and laborers for material furnished and labor performed under said bond.
However, whether it be construed to be a statutory bond or a common-law bond can have no effect upon the ultimate determination of the question involved herein, in that the language of the condition of the bond itself under which plaintiff seeks to recover is the same as that required by either section 1040 or section 10898 of our statutes. And is has been directly held that a bond, though voluntary and not authorized by any statute, is valid if it does not contravene public policy or violate any statute, and that in the interpretation of such bond the intentions of the parties, gathered from the whole instrument, must control its interpretation. Kansas City to Use of Kansas City Hydraulic Press Brick Co. v. Youmans, 112 S. W. 225, 213 Mo. 151, loc. cit. 166; LaCrosse Lbr. Co. v. Schwartz et al., 147 S. W. 501, 163 Mo. App. 659; Barnes v. Webster, 16 Mo. 258, 57 Am. Dec. 232; Waterman v. Frank, 21 Mo. 108; State v. Thomas, 17 Mo. 503. Even if viewed as a common-law bond, there is no question but that a third party, for whose benefit a bond is made, may enforce the contract in an action prosecuted in his own name. City of St. Louis to Use of Glencoe Lime & Cement Co. v. Von Phul, 34 S. W. 843, 133 Mo. 561; 54 Am. St. Rep. 695; Devers v. Howard, 46 S. W. 625, 144 Mo. 671; City of Bethany v. Howard, 51 S. W. 94, 149 Mo. 504.
Having in mind that the contractor was required, under the terms of his contract, to provide all necessary machinery, tools, apparatus and other means of construction, we must decide then whether feed for horses, used by a subcontractor in the work, falls within the contractor's bond, which is conditioned that the contractor and his surety "shall pay all lawful claims for material furnished or labor performed in the construction of said highway. * * *"
We have examined many cases in other states as well as those of the United States courts, together with those of our own state, which have any bearing upon the subject in hand. Our conclusion is that, under the condition of the bond herein, which is the same as the requirement of section 1040 of our statutes, only such articles as actually went into the structure or work or improvement, so as to become a part of the same, or such as were used solely for, and wholly or substantially consumed or destroyed in, the construction of the work, structure, or improvement, fall within the protection of the bond.
Whatever our personal views may be as to the desirability for broadening the conditions of bonds required to be given by contractors for public work, we can only interpret the statute as it stands. To attempt to do more would be a direct invasion of the exclusive field of our Legislature.
The feed furnished for the teams, which makes up the account sued on here, under the precise language of the bond before us did not enter into the construction of the work being done by the contractor, nor can it, in our view, be ruled that the feed was "material" that was "used in such work." This is true, even though the feed was eaten and wholly consumed by the teams which were used by the contractor in doing a part of the work. The feed in our view was required primarily for the purpose of maintaining the life of the teams, and the teams of course were to be used in the performance of any other contract that the contractor might get. The teams may be likened to machine graders, scrapers, tools, etc., which are not materials in the sense used in the statute, but are materials that go to make up the socalled contractor's plant or outfit or equipment which are available, not only for this one contract, but for other work, and which in the instant case the very terms of the contract required the contractor to furnish. If we are to hold feed for the horses within the bond, then a blacksmith's claim for labor for shoeing and the veterinary for his services must likewise come within the bond. Each of these items, however, in our judgment, must be viewed as collateral to the contract and as not contemplated by the parties as coming within the language of the bond as "materials furnished for or labor performed in the construction of said highway."
Our view is not shaken by the federal cases cited by respondent. Brogan v. National Surety Co., 38 S. Ct. 250, 246 U. S. 257, 62 L. Ed. 703, L. R. A. 1918D, 776; U. S. v. Lowrance, 252 F. 122, 164 C. C. A. 234. These cases must be viewed in light of the federal statute, namely, Act of Congress of August 13, 1894 (28 Stat. at L. 278, c. 280, Act Feb. 24, 1905, c. 778, 33 Stat. at L. 811 [U. S. Comp. Stat. § 6923]), which provides that any person contracting for any public work shall execute a penal bond that the contractors shall pay for, not only labor and material that go directly into the completed structure, but for all labor and material furnished "in the prosecution of the work provided for in such contract." It is at once apparent that the language of the federal statute is much broader than that of conditions of the bond before us and of our Missouri statutes, and is in fact broader than many of the Mechanics' Lien Acts of the several states. And it has been directly held that:
"The act of Congress and the bond given under it are susceptible of a more liberal construction than the lien statutes referred to, and they should receive it." City Trust, Safe Deposit & Surety Co. of Phil. v. U. S. to Use of Bryant et al., 147 F. 155, 77 C. C. A. 397; Surety Co. v. Lawrenceville Cement Co. (C. C.) 110 F. 717; U. S. for Use of John Davis Co. et al. v. Illinois Surety Co. et al., 226 F. 653, 141 C. C. A. 409.
We have examined each of the cases cited by respondent, and find them readily distinguishable from the instant case by reason of the difference in the language of the federal statutes as compared with that of Missouri.
This is also true with reference to several cases cited by respondent from various state courts. The case of Clatsop County for Use of Frye & Co. v. Fidelity & Deposit Co. of Maryland, 189 P. 207, 96 Or. 2, in which case the Supreme Court of Oregon held the person supplying meals to a subcontractor on public work is a furnisher of "labor and material" within the contractor's bond, and also the case of ...
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