144 Mo. 671 | Mo. | 1898
This case was appealed from the circuit court of Harrison county to the Kansas City Court of Appeals where the judgment was affirmed, but thereafter the case was certified to this court by the court of appeals, upon the ground that one of the judges of that court was of the opinion that the decision is in conflict with the decision of this court in the case of St. Louis Public Schools v. Woods, 77 Mo. 197.
This is an action upon a bond executed by the defendant Howard as principal, and defendants Yandivert and Phillips as his securities to the city of Bethany, Missouri. On the eighteenth day of June, 1894, Howard
The petition then proceeds as follows: “Plaintiff further states that said condition in said bond for the payment for all labor done or material furnished in the construction of said well, was inserted therein in pursuance to the provision of the said written contract between said L. W. Howard and said city of Bethany for the sole and express purpose of protecting all
139^ Perch, of stone, at $1 perpereh.........j.......$139.50
By Cash........................................... 42.60
Balance due..........................................$ 90.00
“That said L. W. Howard has failed and neglected to pay for the same, although often requested so to do, and the whole amount thereof is yet due and unpaid. Plaintiff further states that after the completion of said well, to wit, about the 17th day of August, 1894, he presented his bill for the material aforesaid to the proper officers of said city of Bethany, and demanded and requested said city to protect the plaintiff in his said claim, and to deduct the amount thereof from any balance that might be due to said L. W. Howard for constructing said well; that thereupon said city of Bethany was about to exercise the right conferred upon' it by said contract to pay said claims for work and material out of the balance claimed by said defendants to be due on said contract, and was about to pay the claim of plaintiff and others who had furnished materials for the construction of said well, when the
Defendants demurred to the petition upon the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff declining to plead further, judgment was rendered in favor of the defendants.
Defendants take the position that plaintiff is not entitled to recover on the bond sued on, nor on the contract referred to in the petition, because not privy to that contract, and for the further reason that the city of Bethany has no authority under its charter to make contracts for the benefit of strangers or third pai’ties.
There are authorities which sustain defendants’ position , but the more recent decisions of this court are the other way, and to the effect that a contract between the parties, made upon a valid consideration, may be enforced by a third person, though not named in the contract, where the obligee owes to him some duty
Kansas City ex rel. v. O’Connell, 99 Mo. 357, is not an authority in support of defendants’ position. That was an action for damages for personal injuries in the name of the city against O’Connell on his bond to the city in the nature of a contract' containing among other things, the following stipulations: “It is further distinctly agreed that the said party of the first part shall be responsible for all unlawful damages to persons or property from negligence or carelessness, in doing said work, or in not using proper precaution, between commencing and completing the job, by barricades, signals, lights or otherwise, to prevent injury
The petition in this case alleges in effect that plaintiff after the execution of the contract between Howard and the city of Bethany for digging said well, knowing that Howard was insolvent and relying solely upon the terms and conditions of said bond, he did during the construction of said well, furnish to said Howard the material described in the petition, which
In the case of City of St. Louis to use v. Von Phul, supra, it is further observed: “The following cases uphold the right of third persons, such as subcontractors, laborers, and material men to maintain an action on a bond, given by a contractor to a State, county, city, or school district, conditioned for the faithful performance of a contract for a public improvement, and for the payment of all claims of such third persons, though no express power was given the obligee to-require such conditions.” Citing Baker v. Bryan, 64 Iowa, 562; Lyman v. City of Lincoln, 38 Neb. 800; Sample v. Hale, 34 Neb. 221; Korsmeyer, Etc., Co. v. McCay, 43 Neb. 649; Kauffmann v. Cooper, 65 N. W. Rep. 796. The same rule is announced in The Board of President and Directors of the St. Louis Public Schools v. Woods, 77 Mo. 197.
The city of Bethany is a city of the fourth class, and under its charter has the power to provide water for the use of its citizens and in letting the contract to Howard for that purpose it had the right under the authorities cited to require of him a bond as in this case, conditioned for the payment of laborers, and material men, upon which they might sue upon breach of these conditions.
Our conclusion is that the petition states a cause • of action and that the demurrer thereto should have been overruled.
For these considerations we reverse the judgment of the court of appeals and remand the cause to that court with directions to reverse the judgment of the