American Surety Co. v. United States ex rel. Barret & Co.

127 Ala. 349 | Ala. | 1899

TYSON, J.

This action is brought against the appellant, who is a surety upon a bond executed in pursuance to the provisions of the act of Congress, approved August 13, 1894 (28 U. S. Statutes at Large, p. 278). That act provides: “That hereafter any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work * * * shall he required before commencing such work, to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in sncli contract; and any person or persons making application therefor, and furnishing affidavit to the department under the direction of which said work is being, or has been, prosecuted, that labor or materials for the prosecution of such ivork has been supplied by him or them, and payment for which has not been made, shall be furnished with a certified copy of such contract and bond, and upon which said person or persons supplying such labor and materials shall have a right of action, and shall be authorized to bring suit in the name of the United States for his or their use and benefit against said contractor and sureties,” etc.

The contract, for which the bond in suit was executed as an indemnity, was entered into by F. B. Stowell & Company and the United States of America under which the former was to construct for the latter a post-office building in Meridian, Miss. Omitting all the language of the conditions of the bond except that which has a direct bearing upon the question here involved, we find it reads thus: “That whereas F. B. Stowell & Company have entered into a contract, etc. * * * Now, if the said F. B. Stowell & Company * * * shall promptly make payments to all persons supplying them labor or materials in the prosecution of the work contemplated by said contract, then this obligation to' be void; otherwise to remain in full force and virtue,” substantially a literal copy of the language of the act of Congress above quoted providing what the obligation of such bonds shall be. It is obvious that the. only obligation assumed by the surety is to pay those persons such amounts as may be due them on account of labor performed or materials furnished to his principal, in the event his principal makes default; that the surety is not liable for materials furnished for which his principal is not liable. There is no pretense in this case that the plaintiff furnished any materials to-Stowell & Company or that the sub-contractor to whom plaintiff sold his goods had any authority to bind them. For that matter, it is not insisted that the sub-contractor purchased them as the agent of Stowell & Company. In truth they were purchased by him on his own account, and they were sold to, him cn his own account. This being true the defendant, appellant here, is not liable. To sustain the contention of appellee would be to impose upon Stowell & Company and this appellant as their surety a liability they never contracted for — a personal liability for goods sold to a third party for which they were in no wise responsible.

The rulings of the circuit court not being in accord with these views, the judgment must be reversed and the cause remanded.