136 Mo. App. 44 | Mo. Ct. App. | 1909
(after stating the facts). — It is contended by the learned counsel for appellant, that the contract contained an implied agreement on the part of the contractor Banks to pay plaintiff’s demand, and the appellant accordingly contends that Banks having thus agreed by his contract to pay the demand of plaintiff and having secured by his bond the performance of his contract, in all its several parts and agreements, including his agreement to pay plaintiff and the respondent St. Louis County Trust Company by its bond, which covered the contract of Banks, securing his agreement to pay plaintiff, “thereby and by operation of law the bond was executed for the use and benefit of this plaintiff (together with other third persons) and an action has accrued to plaintiff on such bond, although not named therein.” A long line of decisions of our courts is then cited in support of the claim that they establish the doctrine, that a promise made to another for the benefit of a third person is to be deemed made to the third person, if adopted by him, though such third person was not privy to the consideration, was not named and was not cognizant of the promise when made; that it is presumed that such third person accepts such promise made in his favor, and to overthrow this presumption a dissent must be shown; that such third person may sue in his own name without joining the direct promisee. It is thereupon claimed, that under the facts pleaded, the bond inured to and was executed for the benefit of plaintiff and others for the reason that the school district, making a contract for the doing of public work, “the moral duty and obligation thus rested upon them to protect those who furnished work and materials upon such public work and improvement, and the bond, executed to the school district to secure its contract for public work, inured to the persons to whom it bore such moral duty and obligation, namely, the persons who furnished work and materials upon such public improvement.” It
That a contract between two parties upon a valid consideration, may be enforced by a third party, when entered into for his benefit, and that this is so although
Nor does the bond come within the statute referred to (section 6761), for it does not contain the clause carrying the condition that it be “for the payment for all material used in such work, and all labor performed on such' work, whether by subcontract or otherwise.” Furthermore, if this section is relied upon, then the suit should have been in the name of the school district to the use of appellant (R. S. 1899, sec. 6762). While it may be said that there was no necessity for the school board to protect the building against liens (Press Brick Co. v. School District, 79 Mo. App. 665) the fact remains that this bond was drawn in such terms as to protect the school district alone, and not third parties. Conceding that there is no right of lien against the schoolhouse, counsel for appellant argues that if this bond is not for the protection of third parties, laborers and materialman, it is meaningless. That may be true, but that fact surely cannot be held to extend the bond beyond its language and terms, or its necessarily implied obligation, at least that cannot be done as against the surety. It is true, that the amended petition alleges .that this bond is for the benefit of all parties furnishing labor and material and that the petition is met by a demurrer, but it needs no citation of authorities on the proposition, that a demurrer only admits such mat
Our conclusion upon the case is, that while recognizing the legal propositions advanced by the appellant, as generally correct we are compelled to hold that it does not apply to this bond, and so holding, the judgment of the trial court, sustaining the demurrer to the petition, is affirmed.