175 Mo. App. 555 | Mo. Ct. App. | 1913
This is an action on the bond of a contractor for the erection of an addition to the insane asylum of the city of St. Louis, brought in the name of said city to the use and for the benefit of the relator, the Contracting & Supply Company, to recover a balance alleged to be due the relator for materials furnished to and for such building under contract with a subcontractor of the defendant, Hill-0’Meara Construction Company, the latter being the original contractor. All the parties to the record are corporations. The plaintiff recovered and the defendants prosecute the appeal.
It appears that on September 17,1908, the defendant, Hill-0 ’Meara Construction Company, entered into a written contract with the city of St. Louis, whereby it contracted and agreed to construct certain additions to the insane asylum of said city. This contract contains the bond here sued upon, which was executed by the defendant, Hill-0’Meara Construction Company,
■ The essential facts are not in dispute. It appears that on o,r about July 10, 1909, the defendant, Hill-0 ’Meara Construction Company, the contractor, sublet to Smith & Watson Company, a corporation, that portion of the work to be done under the contract, designated as “plastering.” It further appears that thereafter, in reliance upon the contract of the Smith & Watson Company with the defendant, Hill-0’Meara ' Construction Company, the contract of the latter with the city and the bond here sued upon, and at the special instance and request of the Smith & Watson Company and under contract with it, the relator from time to time furnished for and delivered to said building, while in the process of construction, certain plaster, lime, cement and other materials, which were actually used in the construction of said building in the manner contemplated by the said contract for the erection thereof; that the prices charged for the materials so furnished as shown by the account filed with the petition, were the prices agreed upon between the relator and the said Smith & Watson Company, and were the reasonable value of the materials so furnished; and that the balance of $2735.14 remained due plaintiff on account thereof.
The suit was instituted within ninety days after the completion of the work, as required by the ordi-nance under which the bond was given. [Sections 1988 and 19891 of Woerner’s Revised Code of the City of St. Louis (1907), now Sections 253 and 254 of the Revised Code of said City (Rombauer, 1912).] The cause was tried before the court without a jury. The court found the issues against the defendants, and entered judgment for the relator and against the defendant Hill-O’Meara Construction Company, as ' principal, and defendant Mississippi Valley Trust Company, as surety, for the sum of $3,000’,000, the penalty of the said bond, to be satisfied upon payment of the said sum of $2735.14 damages, with interest at the rate of six per cent per annum from the institution of the suit.
The- only question involved in the appeal pertains to the right of one to recover on a bond such as this, who furnishes material at the instance and request of a subcontractor, by delivering the same to the building under construction and which is actually used in the construction thereof. Appellants contend that there can be no recovery upon the bond in such a case, where
-The bond is literally in accord with the provisions of the Revised Code of the City of St. Louis above referred to. The statutory provisions concerning such bonds, in force at the time that the contract was entered into, were sections 6761 and 6762 of the Revised Statutes of 1899 (now sections 1247 and 1248, Revised Statutes 1909, as amended), and provided that the bond should be conditioned “for the payment of all material used in such work and labor performed on such work, whether by subcontract or otherwise. ’ ’ The latter cannot enlarge the terms and provisions of the bond, but the language of the bond is to be interpreted in the light of the statute and ordinance and with a view to effectuating the legislative intent manifested by these enactments. [Kansas City to the use, etc., v. Youmans, 213 Mo. 1. c. 183, 112 S. W. 225 ; State ex rel. v. Rubber Co., 1491 Mo. 1. c. 212, 50 S. W. 321; H-enrv County v. Salmon, 201 Mo. 1. c. 162, 100i S. W. 20; Board of Education ex rel. v. Surety Co., 155 Mo. App. 1. c. 117, 134 S. W. 18; United' States to the use of Hill v. American Surety Co., 200 U. S. 197.]
It has frequently been held that the purpose of requiring bonds such as this, on contracts for the erection of public buildings, is to afford to those furnishing material and labor on public work, which cannot be subjected to a mechanic’s lien, the same measure of protection as is afforded by the mechanics’ lien law where the building or improvement is not of a public character. [See Board of Education ex rel. v. Fidelity & Guaranty Company, 166 Mo. App. 410, 149 S. W. 46 ; Board of Education ex rel. v. Fidelity & Guaranty Company, 155 Mo. App, 109, 134 S. W. 18 ; Glencoe Lime & Cement Company v. Wind, 86 Mo. App. 163 ; Hydraulic Press Brick Company v. School District, 79 Mo. App. 665, 200 U. S. 197.]
Had the materials in question been furnished by the relator at the instance and request of a subcontractor, to and for any building other than a public one, he undoubtedly would have been entitled to a mechanic’s lien against the property. [Fruin-Bambrick Construction Company v. Jones, 60 Mo. App. 1 ; Stevens Lumber Co. v. Kansas City Lumber Co., 72 Mo. App. 249 ; Western Sash & Door Co. v. Buckner, 80 Mo. App. 95 ; Knapp v. Stockyards, 152 S. W. 120.] And in view of the declared purpose of requiring such a bond to be given, where the building is of a public character, the law should, in such cases, afford him a remedy thereon. Óur courts have repeatedly so held; and the qriestion must be regarded as definitely settled in this State. [Glencoe Lime & Cement Co. v. Von Phul, supra; Kansas City to use of v. Youmans, supra; Board of Education v. Fidelity & Guaranty Co., supra.
Neither is the relator’s right to recover on the bond in any wise affected by the question as to whether or not the contractor has paid the subcontractor, at whose instance the materials were furnished, the latter’s full contract price for the portion of the work to be done by it. Where the building is privately owned, one’s right to a mechanic’s lien cannot be thus defeated. [See Henry & Coatsworth Co. v. Evans, 97 Mo. 50, 10 S. W. 868 ; Ittner v. Hughes, 133 Mo. 679, 34 S. W. 1110.] And, by the same reasoning, such payment constitutes no defense to an action on the contractor’s bond, where the building is of a public character. [See Kansas City v. Youmans, supra.]
That those who furnish labor and material to a building or improvement for a subcontractor, in carrying out the terms of the original contract made with the main or original contractor, stand in such privity of contract with the latter as to be entitled to recover upon the contractor’s bond, has been repeatedly declared by our courts; and an extended discussion of the question could serve no useful purpose. [See Board of Education ex rel. v. Fidelity & Guaranty Company, 155 Mo. App. l. c. 121, 134 S. W. 18 ; Board of Education ex rel. v. Fidelity & Guaranty Company, 166 Mo. App. l .c. 422, 149 S. W. 46 ; Glencoe Lime & Cement Co. v. Von Phul, 133 Mo. 561, 34 S. W. 843 ; Glencoe Lime & Cement Co. v. Wind, supra.]
Appellants rely solely upon the decision of the Supreme Court in B'erger Manufacturing Co. v. Lloyd, 209 Mo. 681, 108 S. W. 52. The facts of that case do not fully appear in the opinion of the Supreme Court just referred to, but may be ascertained by reference to the statement of facts therein by Goode, J., when the cause was in this court (113 Mo. App. 1. c. 208, 91 S. W. 468), from which it will appear that there the plaintiff
In the light of these facts, it is at once apparent that the Berger case does not sustain appellant’s po-' sition. There, had the building been privately owned, the mechanics’ lien law would have afforded no protection to the plaintiff who thus sold raw material to a subcontractor. The plaintiff delivered nothing to the building; the ráw material which it furnished the subcontractor at its place of business was manufactured into the various articles which the subcontractor was required under its contract to supply, and which it did supply by delivering the same to the building. There was no such privity of contract between the plaintiff and the original contractor as> would entitle the former to maintain an action on the latter’s bond. The contractor’s liability was at an end when it paid the subcontractor for the articles which the latter ■ agreed to furnish and which it did furnish in accordance with its contract.
In a case such as the one before us, the contractor may readily protect himself and his sureties ■ against claims for material actually furnished to the building
It may be further noted that the contract and bond in the Berger case were quite different from those here involved, affording another ground of distinction between the cases; but regardless of this, and for the reasons alone which we have indicated above, the Berger case is not here in point.
The judgment below was clearly right, and should be affirmed. It is so ordered.