107 Mich. 151 | Mich. | 1895
Defendant Grant, in August, 1892, entered into a contract with tbe board of education to build a schoolhouse. Tbe board required, and Grant, with James Hannon and Wendlin Springer, as sureties, executed, a bond to fhe board, which contained tbe following condition:
“Tbe condition of tbe above obligation is such that, if Alexander Grant, who has executed the annexed contract for the Merrick Avenue schoolhouse, all the work contained in the carpenter’s specifications of the same, and his subcontractors, shall faithfully pay, or cause to be paid, all just claims, when due, for labor performed or furnished, or for materials used, in and upon the*153 building or buildings known as the ‘Merrick Avenue School house/ or for any claim for both labor and materials against the same; and, further, that said Alexander Grant and his subcontractors shall pay any and all judgments in law or decrees in chancery that may be rendered against said Merrick Avenue schoolhouse, in favor of any person or persons, for labor performed or furnished, or for materials used, in and upon the buildings described in said contract, and shall protect and save harmless the board of education from all moneys laid out or expended, or any liability incurred, in the defense of any suit that shall be brought against it to collect such claim or claims for labor and materials, and shall in all respects well and faithfully execute and perf orm, live up to and abide by, the same, according to> the terms thereof, — then this obligation to be void; otherwise, to remain in full force and virtue.”
Upon completion of the work, the board was indebted to Grant in the sum of $1,580.80, and Grant was indebted to various subcontractors, among whom were Hannon & Springer, a firm composed of the sureties upon the bond, in the sum of $2,861.26, and it was agreed that the sum due from the board should be divided pro rata among the subcontractors, and upon payment thereof the board should be discharged from liability. An instrument was then prepared and executed by Grant and the subcontractors, reciting the facts above stated, and the agreement to prorate and release the board, which contained the following provision:
“But in no way releasing said Alexander Grant from the balance remaining due, nor in any way releasing said Hannon & Springer from any liability they may be under to said creditors of said Grant by reason of their being sureties upon his bond to the board of education, and without prejudice in any way to any rights said creditors may have against said Hannon & Springer by or through said bond.”
Grant then executed a receipt in full to the board, and the subcontractors signed an agreement, consenting to the payment of the money to one Fick, which agreement contained the following:
*154 “And the said board be released from all liabilities in the taking of said bond in the matter, or from all demands to date, * * * or in the paying of said money, as above.”
This suit is brought on the bond, for the use of the subcontractors other than Hannon & Springer, to recover the balance due them from Grant. A recovery was had, and the sureties appeal. The contention is that this bond was given to protect the board of education, and is not a bond under 3 How. Stat. § 8411a. .
The statute (2 How. Stat. § 84115) provides that the bond contemplated by it shall be “conditioned for the payment by such contractor or any subcontractor, as the same may become due and payable, of all indebtedness which may accrue to any person, firm, or corporation on account of any labor performed or materials furnished in the erection, repairing, or-ornamenting of such building or works.” The condition of the bond given is substantially that required by the statute. The fact that the bond contains a further undertaking to pay all judgments and decrees rendered for such labor and materials, and to save the board harmless from all liability incurred in connection with the defense of such claims, does not take the bond out of the statute. The liability of the sureties is not attempted to- be extended beyond the clear and express terms of their undertaking. It has been frequently held that, .in the absence of a prescribed statutory form, and- of a declaration that bonds not’in accordance therewith shall be void, if a bond be taken under a statute, with a condition in part prescribed by statute, and in part not so prescribed, yet, if it be clearly divisible, a recovery may be had upon it for a breach of the part prescribed by statute. The super-added part may be rejected as surplusage. U. S. v. Brown, Gilp. 155; People v. Lyons, 7 Daly, 182; Van Deusen v. Hayward, 17 Wend. 67; Ring v. Gibbs, 26 Wend. 502; Walker v. Chapman, 22 Ala. 116; Woods v. State, 10 Mo.
Nor will the fact that the obligee named is the board of education, and not the State, defeat a recovery. In Governor v. Allen, 8 Humph. 176, a bond of the receiver of school funds, which the statute provided should be given to the superintendent of public instruction, was held valid, although given to the governor. In Vanhook v. Barnett, 4 Dev. 268, and Justices of Christian v. Smith, 2 J. J. Marsh. 472, a bond directed to be given to the .governor was held valid, although given to the justices of a county. Horn v. Whittier, 6 N. H. 88; Sweetser v. Hay, 2 Gray, 49; Thomas v. White, 12 Mass. 369; Howard v. Brown, 21 Me. 385; State v. Thompson, 49 Mo. 188; Claasen v. Shaw, 5 Watts, 468. In some of these oases the bond was held invalid as a statutory bond, but good as a common-law obligation. It is insisted, however, that in the majority of these cases the bonds were 'official bonds. But that can make no difference in the principle involved. The statute requires the exaction of a bond for the protection of the subcontractors', laborers, and material men, and it can' make no difference in the application 'of the rule that the entire public are not the beneficiaries. The obligor has consented to make the board of education, instead of the State, the trustee for the interested parties. In Supervisors of St. Joseph v. Coffenbury, 1 Mich. 355, a bond given by a county treasurer to the board of supervisors was held to be a good common-law obligation, although there was no statute authorizing said board to receive or exact such a bónd.
The judgment is affirmed.
