199 P. 953 | Or. | 1921
Section 2991, Or. L., requires a contractor on public work entering into a formal contract with a county, 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 or materials for any prosecution of the work provided for in such contracts”; and pro
It will be noticed that in addition to the requirements of the statute prescribing the conditions of the bond, the instrument in question contains the provision for the payment of “all just debts, dues and demands incurred in the performance of such work.” Pursuant to the contract, Feldschau, about March 15, 1917, entered into the performance of the work, and conducted the same until the latter part of September, 1917. The road, which by the terms of the contract was to be improved, was not situated near any town or village, and in order that he could carry on the work it was necessary to maintain suitable living quarters and accommodations for a large number of laborers who were employed on the work. In order to furnish the necessary quarters and provisions, the contractor was required to establish and maintain a camp where the necessities of life for the employees could be obtained and the men could be housed.
The question involved is stated in the brief of counsel for appellant, as follows:
“The bond has a dual aspect, i. e., for the faithful performance of the work and the payment for labor and material, but there is involved here only the statutory provision that the contractor ‘ shall promptly make payments to all persons supplying him or them labor or materials for any prosecution of the work provided for in such contracts.’ The bond is broad in its terms, but is of course to be construed in the light of the statute, pursuant to which it was exacted.. * *
“The Surety Company which is appellant here, does not question the correctness of any of the charges, or that these mercantile houses made the*373 sales claimed. It rests its case solely upon the fact that the articles for which claim is asserted are not in any proper sense comprehended under the term ‘materials’ used in the statute.”
In other words, the contention of the appellant is that the part of the bond which is in addition to the one compelled by the statute is of no force, and that the county was not authorized to require such an additional stipulation in the bond. We are not aware that this question, under our present statute, has been passed upon by this court. The materials and supplies which were furnished by Hildebrand & Company consisted of camp equipment and utensils such as were used in a camp in construction work of this kind, which were only meant to be used and to last during the period of improvement.
The material and supplies furnished by Judd Brothers consisted of men’s wearing apparel, bedding, overalls, underwear and socks, which were purchased by Feldschau and furnished to his employees, and the price for the same deducted from their daily wages.
The trial court found that a number of items furnished by the relator to Feldschau consisted of knives, forks, cooking utensils, and dishes, amounting to $85.75, which were not used up in the prosecution of the work, should be deducted from the claim. The trial court, among other things, found:
“That during the prosecution of said work and between the first day of March, A. D. 1917, and the first day of June, A. D. 1917, the relator, August Hildebrand, at the request of F. C. Feldschau, sold and delivered to such defendant a large quantity of supplies and camp equipment which were reasonably worth the sum of $428.92, and for which the said defendant,*374 F. C. Feldschau, agreed to pay to the relator, August Hildebrand, the sum of $428.92. * *
“Regarding relator’s further and second cause of action against defendants the Court finds that during the prosecution of said work and between the twelfth day of March, A. D. 1917, and the fourth day of July, A. D. 1917, that Edw. C. Judd and Geo. F. Judd, co-partners doing business under the firm name and style of Judd Brothers bargained, sold and delivered to defendant, F. C. Feldschau, goods, wares and merchandise consisting of men’s wearing apparel, overalls, gloves, mittens, blankets, comforters and other things gecessary for working men, at the agreed and stipulated price of $179.45, and that said goods, wares and merchandise so sold and delivered by the said Judd Brothers to the said F. C. Feldschau were used by the said F. C. Feldschau in carrying on the work of said contract and were' exchanged by the said F. C. Feldschau with his laborers for wages.”
As we understand the record, it is not questioned but that the amounts in controversy were just debts and demands incurred in the performance of the work. Many of the supplies would not be considered as “labor or materials” within the strict letter of the statute. If the additional provision referred to contained in the bond is invalid, plaintiff cannot recover for the same in this action.
It is stated in 9 C. J., page 29, Section 45, thus:
“A bond, whether required by statute or order of court or not, is good at common law if it is entered into voluntarily by competent parties for a valid consideration, and is not repugnant to the letter or policy of the law; and such a bond, other than an official bond, is enforceable according to its conditions, although they are more onerous than would have been required if a statutory bond had been given for the same purpose. This rule has been applied to bonds given to the United States.”
In observing the precedents in other states we find that the case of Puget Sound State Bank v. Gallucci, 82 Wash. 445 (144 Pac. 698, Ann. Cas. 1916A, 767), was an action upon contracts and bonds similar to
“Some contention is made that we should regard the city’s right to recover upon the bonds the same as if we had before us the bonds only, with their required statutory conditions, and not the broader provisions of the contracts touching debts incurred in the performance of the work, which we have noticed was also secured by the bonds. The fact, however, that the bonds in connection with the provisions of the contracts secured thereby are farther reaching than the strict statutory conditions of such bonds, we think, does'not render the farther reaching conditions here involved inoperative or void. The law seems to be well settled that bonds of this nature may be required by, and given to, a public corporation in excess of, or without any statutory authority and the beneficiaries thereunder be none the less entitled to recover thereon. Smith v. Bowman, 32 Utah, 33 (88 Pac. 687, 9 L. R. A. (N. S.) 889); Denver v. Hindry, 40 Colo. 42 (90 Pac. 1028, 11 L. R. A. (N. S.) 1028).”
It was there held that the surety on the bond was liable for the money so loaned by the bank, pursuant to an arrangement therefor to enable the contractor to pay for labor and supplies.
The case of Guaranty & Surety Co. v. State ex rel., 61 Ind. App. 268 (109 N. E. 237), was an action on a bond given to secure the performance of a contract for the construction of a free gravel road. The statute of that state provided for a bond conditioned, among other things, for the benefit of third persons that the contractor should pay for any labor or mate
“It is thus apparent that the bond here is conditioned more broadly than required by said section, in that it contains the provision respecting the payment of all debts incurred and all claims for boarding laborers. There is, however, no statute that prohibits a board of county commissioners from taking or requiring a bond thus broadly conditioned.”
This opinion was adhered to upon rehearing: See 61 Ind. App. 268 (111 N. E. 19).
In Williams v. Markland, 15 Ind. App. 669 (44 N. E. 562), a bond taken by a township trustee, to secure labor and material on a contract for building a schoolhouse, was held to be a valid obligation, although not provided for by statute; and one suing to recover for material and labor was held entitled to maintain an action thereon. The court said: “That one has a right to maintain an action upon a contract made with another for his benefit, is established in our state, and is not controverted by appellee’s learned counsel.”
In the case of Union Sheet Metal Wks. v. Dodge, 129 Cal. 390 (62 Pac. 41), a contractor on a schoolhouse gave a bond to the district that he would pay all his subcontractors, laborers and materialmen. A materialman brought suit on this bond. It was held that although there was no statutory provision for
In St. Louis Use of Clenco Lime & Cement Co. v. Ton Phul, 133 Mo. 561 (54 Am. St. Rep. 695, 34 S. W. 843), it was held that a city could require from a contractor a bond to protect materialmen and laborers, although this bond was not provided for by charter. This bond authorized a suit by a materialman in the name of the city, for his use. It was held that under the power granted to repair streets, the implied power existed to exact such a bond.
In Devers v. Howard, 144 Mo. 671 (46 S. W. 675), a city required a contractor on a well to give a bond to protect labor and material. It was held that a materialman could maintain an action on this bond, although the charter or statute did not provide for such bond.
In Sample v. Hale, 34 Neb. 220 (51 N. W. 837), a state board was held authorized to require a contractor on a public building to contract to protect labor and material. A materialman was held entitled to sue on a bond for the faithful performance of the contract.
The cases of Doll v. Crume, 41 Neb. 655 (59 N. W. 806), Lyman v. City of Lincoln, 38 Neb. 794 (57 N. W. 531), City of Philadelphia v. Harry C. Nichols Co., 214 Pa. 265 (63 Atl. 886), American Surety Co. v. Raeder, 15 Ohio C. C. 47, Philadelphia v. Stewart, 195 Pa. 309 (45 Atl. 1056), and State ex rel. Palmer v. Webster, 20 Mont. 219 (50 Pac. 558), support the same principle. In Knapp v. Swaney, 56 Mich. 345 (23 N. W. 162, 56 Am. Rep. 397), the plain language
“A corporation, when constructing a public building or other public work, is chargeable with moral duty, as an individual would be, to see that it is so constructed that people may not be injured in coming near to or making use of it in a proper manner. In some cases they may not be legally responsible for failure to perform this duty; but where the moral obligation exists, it cannot be said that any provision for its performance, not improper in itself, is ultra vires. A county may go to great pains and great expense to make its courthouse unquestionably safe, that individual citizens may not suffer injuries consequent upon its construction. But if it may do this, it would be very strange if it were found lacking in*380 authority to stipulate, in the contract for the building, that the contractors when calling for payment, shall show that they are performing their obligations to those who supply the labor and materials, and that the county is not obtaining the building at the expense of a few of its people. We cannot think such is the case. We are of opinion that there was nothing ultra vires in this condition, and that the relators are bound by it.”
Coming back home, we find the same principle was maintained in an able opinion by Mr. Justice Wolverton in the case of Hamilton v. Gambell, 31 Or. 328 (48 Pac. 433). It was held that the Portland City Charter, Section 118, requiring a bond with certain conditions, is not a limitation on the manner in which contracts may be drawn, but is a proviso that no contract shall be made without that kind of bond; that the regulation of the ordinance was a reasonable one intended to comply with the moral duty resting alike on public corporations and private persons, to see that those who perform services for them, whether directly or indirectly, are paid.
“The great weight of authority,” reads the note in 11 L. R. A. (N. S.), page 1028, “sustains the power of a municipality to make such contracts, even though they are not expressly authorized by the legislature.”
The precedents cited on behalf of appellant, all of which we have examined, mostly refer to cases involving liens. Such cases are of little assistance in considering the question involving contracts and bonds like those in the instant case.
Our statute enjoins the duty upon the State of Oregon, or any municipality, county or school district, in entering into a contract for the construction of any public work, to require the usual penal bond with
It follows that the judgment of the Circuit Court should be affirmed. It is so ordered.
Affirmed. Rehearing Denied.