148 S.W. 1195 | Tex. App. | 1912
On the 1st of August, 1910, Nathaniel Smith and the trustees of the Killeen independent school district entered into a contract, whereby the former, in consideration of the sum of $10,068, to be paid him by the latter, agreed to erect and complete certain additions to the school building belonging to said district, furnishing all material therefor, etc.; said contract containing numerous stipulations, which we deem unnecessary to recite, and at the same time executing an indemnity bond in the sum of $5,000 to said trustees for the faithful performance of said contract, with appellees as sureties thereon. Having, it seems, failed to pay appellants, who claimed to have furnished labor and material for the construction of said building, they instituted this suit therefor against appellees, the sureties on said bond, alleging that they had obtained judgment against Smith for the respective amounts due them, a part only of which had been paid, claiming that appellees were liable to them for the balance thereof by reason of the execution of said indemnity bond, which, it is alleged, was conditioned that the said Smith should "duly and properly pay and discharge all indebtedness which might be incurred by him in carrying out the said contract to erect said school building, including attorney's fees in enforcing the payment and collection of any and all indebtedness incurred by the said Nathaniel Smith in carrying out said contract, and said contract and bond, in writing, was made, executed, and delivered by said defendant to the said trustees for the use and benefit of plaintiffs herein, and plaintiffs attach hereto said bond, making the same a part of this petition; the same being as follows:
"Bond. Know all men by these presents, that we, Nathaniel Smith, and sureties of the city of Killeen, county of Bell, state of Texas are held and firmly bound unto trustees of Killeen independent school district, of said county and state, as well as to all persons who may become entitled to liens under the contract hereinbefore mentioned, in the sum of five thousand no/100 dollars, lawful money of the United States of America, to be paid to the said trustees of Killeen independent school district and to said parties who may be entitled to liens, their executors, administrators or assigns; for which payment, well and truly to be made, we bind ourselves, one and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals; dated this 30th day of July, 1910. The condition of this obligation is such that if the above-bounden Nathaniel Smith his executors, administrators or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in above-mentioned contract, entered into by and between the said Nathaniel Smith, contractor and the said Killeen independent school district, dated on the 30th day of July, 1910, for the construction of the work or works on the lot mentioned in the foregoing contract, and shall duly and promptly pay and discharge all indebtedness that may be incurred by the said Nathaniel Smith in carrying out the said contract and complete the same, free of all mechanic's liens, and shall truly keep and perform the covenants, conditions and agreements in said contract and in the within instrument contained, on his part to be kept and performed, at the time and in the manner and form therein specified, as well as all costs, including attorney's fees, in enforcing the payment and collection of any and all indebtedness incurred by said Nathaniel Smith in carrying out said contract, then the above obligation shall be void; else to remain in full force and virtue. This bond is made for the use and benefit of all persons who may become entitled to liens under the said *1196 contract, according to the provisions of law in such cases made and provided, and may be sued upon by them as if executed to them in proper person."
A general demurrer was sustained to this petition, and judgment was rendered that defendants go hence without day, and recover their costs, from which action of the court appellants have appealed, and assign the same as error.
It will be observed that the bond in the present case was executed for the benefit of the trustees of said school district and for lienholders against said building. It is not shown by any allegation in the petition nor the bond or contract that plaintiffs came within the purview of this provision. No lien of any character could attach under section 85 of the school law of 1905 (Acts 29th Leg. c. 124) against a public school building. The effect of the obligation of said bond is to be determined strictly according to its terms, and cannot be extended by implication, so as to make sureties thereon liable beyond its stipulations. See Cyc. vol. 27, p. 308. If the bond in the present case had provided that the obligors were bound, not only to the trustees of the Killeen independent school district, but likewise to all persons who might perform labor or furnish material in the construction of said building, irrespective of whether they were lienholders or not, then it seems, under the authorities, that plaintiffs in this case might have a cause of action, and be able to maintain this suit (see City of St. Louis v. Vonphul,
In National Bank of Cleburne v. Gulf, Colorado Santa Fé Ry. Co.,
It is contended by appellees in their brief that "the subsequent paragraph in the bond did not create any obligation, but only stated the condition upon which the obligation should remain in full force and be effective; that is, that the same should be void, provided Nathaniel Smith constructed the building according to contract, and paid off and discharged the indebtedness incurred by him in its construction. In the language of Justice Brown in the case last quoted, we say that, if there had been any doubt as to the meaning of the obligation and the condition stated in the first two paragraphs of the bond, it is surely dispelled by the full expression of the intention of the parties and the character of the obligation as stated and defined in the third paragraph of the bond, which is as follows: `This bond is made for the use and benefit of all persons who may become entitled to liens under the said contract according to the provisions of law in such cases made and provided, and may be sued upon by them as if executed to them in proper person.' No right of action is given to any person, other than the trustees of the Killeen independent school district, and persons who might become entitled to liens. The bond did not recite that it was given for the use and benefit of all persons to whom Nathaniel Smith might become indebted for labor or material in the performance of his contract."
We adopt this view and hold that as appellees, who were sureties upon the bond of Smith, cannot be held, except in accordance with the strict terms thereof, and since their liability cannot be extended beyond the terms of the bond, as shown by the following cases: Boas v. Maloney,
Affirmed.