22 Ind. App. 652 | Ind. Ct. App. | 1899
— The appellant in this cause sued the appellees upon a bond executed by them to “Van Burén School Township, State of Indiana, and James E. Eeed, Trustee,” to recover for materials furnished to and used by George W. Marldand in the construction of a schoolhouse. A joint demurrer of appellees (sureties) to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action was sustained, and appellant refusing to plead further, the court rendered judgment for costs against appellant in favor of appellees, and in favor of appellant against Markland for the amount of the claim. The action of the court in sustaining said demurrer, and in rendering judgment against appellant, is assigned as error on this appeal.
The complaint avers that Markland entered into a contract with the township trustee to build a schoolhouse, and furnish the material and labor therefor, and, to secure the performance of the same, and payment of all bills and claims for materials furnished and labor performed by third persons in its construction, Markland’s co-appellees bound themselves to said trustee as sureties for said Markland, in the sum of $5,000, for the fulfilment of the contract, of which contract and undertaking appellant had knowledge when he furnished the material on account of which he sues. It is alleged that the building was completed and paid for; that the contractor is insolvent. The contract is signed by Eeed, trustee, and Markland, and the undertaking which is attached thereto as a part thereof is signed by the sureties ' alone. The position of appellees is that the undertaking is executed to the township for its protection against Markland, —nothing more; that it does not bind the sureties to pay for labor or materials to any other person than the township. Appellant claims that the obligation on the part of the sureties that Markland should perform his part of the contract rendered the sureties liable for materials furnished, under the following provision of the contract, viz.: “Provided,
It has been held by this court in Williams v. Markland, 15 Ind. App. 669, that an undertaking analogous in character to the one under consideration was made for the benefit of those who furnished material and performed labor, and “upon a further consideration, viz., the letting of the contract; and also that Markland was to pay for the material and the labor.” The court in the cause cited gives as a reason for holding that the provisions of such contract were
Appellees’ learned counsel attach importance to the fact that the contract and the undertaking bear different dates. It is averred in the complaint that the contract was entered into July 21, and that the undertaking was executed at the same time as a part thereof. The exhibit shows, however, the date of the contract to be July 21, 1892, and of the un
The demurrer should have been overruled. We are not unmindful of the rule that sureties are favorites of the law, and that the contract of a surety cannot be extended beyond the fair scope of its.terms. But in construing contracts of suretyship, and contracts in general, the rule of construction is the same.
Judgment reversed, with instruction to overrule the demurrer to the complaint.
Wiley, J., absent.