55 Mo. App. 107 | Mo. Ct. App. | 1893
This is an action to recover a penalty in a bond. It seems from the record before us that R. K. Allen & Son entered into a written contract with the board of county commissioners of the county of Jefferson, in the state of Nebraska, to do all the work and furnish all the material for the proper construction and completion of a court house and jail building for said county, in accordance with the plans, elevation, sections and detail drawings, and in the manner specified in'the specifications, for which the commissioners were to pay Allen & Son $54,800, etc.
The statute of the state of Nebraska, 1891, section 2172, provides: “It shall be the duty of the board of public lands and buildings, boards of county commissioners, the contracting board of officers of all cities and villages and all public boards now or hereafter in
Accordingly, Allen & Son entered into a bond with the other defendants, Wyeth and Uhlman, as sureties thereon in the sum of $15,000, conditioned as required by the above recited statute.
Afterwards the plaintiffs entered into a written contract under Allen & Son, by which the former agreed to do all the work and furnish all the material for the proper construction and completion of the cut stone and rubble work in said building, in accordance with the plans, elevations, sections and detail drawings of the architect thereof, for $20,100, ninety per cent, of the material furnished and labor performed and permanently put in place to be paid for'from time to time as the work progressed on the estimates of the architect, etc.
It appears further that the plaintiffs proceeded to furnish the materials and do the work as they had con
In this connection it may be proper to state that during the time the plaintiffs were performing their part of said contract with Allen & Son, they employed themselves in superintending the getting out of the stone and the placing of the same in the buildings, taking sometimes the part of a hand in both getting out and preparing the material and doing the work on the building. The plaintiffs, it appears, paid the laborers and mechanics the wages due on account of the work done by them on the buildings.
The court, against the objections of the defendants, gave for plaintiff an instruction telling the jury that by the terms of the contract read in evidence between Allen & Son and the commissioners in charge of the construction of. the court house at Fairbury, Nebraska, it was the duty of said Allen & Son to pay the laborers and mechanics employed on said building for labor performed and services rendered in the construction thereof; that by the terms of the bond read in evidence, the defendants, Uhlman and Wyeth, upon default of Allen & Son to pay laborers and mechanics engaged in
The court refused to instruct the jury that, under the pleadings and evidence, the jury should find for defendants, Uhlman and "Wyeth. The' verdict and judgment were against all of the defendants, who have brought the case here by appeal.
Several questions have been discussed in the briefs of counsel in this case, but we shall only consider that of them which we think is decisive of the case, namely, the liability of Wyeth and Uhlman, the sureties on the bond of Allen & Son to the commissioners.
The plain meaning of the statute of Nebraska, already quoted, is that the commissions shall, in cases where mechanics and laborers have no lien to secure the
The obligations of sureties, it has long ago been decided in this state, are to be strictly construed, and their liabilities are not to be extended by implications. Blair v. Ins. Co., 10 Mo. 566; Harrisonville v. Porter, 76 Mo. 358. The statute under consideration, as against the sureties on the bond sued upon, must be strictly construed.
It is to be conceded the plaintiffs were the subcontractors of the principal contractors. The former agreed with the latter for a specific amount to furnish the materials and do the work on certain part of the buildings according to the plans and specifications of the architect which were made part of the contract of Allen & Son with the commissioners. The pertinent inquiry now is, whether this statute makes any distinction between a “mechanic” or “laborer” and a “subcontractor,” whose undertaking is like that of the plaintiffs in this case. It is very manifest that if the $15,000 indemnity provided by the bond is for the benefit of a subcontractor who furnishes material, as well as performs labor, that in a case like this, where
i But it is insisted that the converse of this is true, that is to say, that a laborer or mechanic, though a subcontractor, furnishing materials, who has performed labor, either in procuring material or in placing and fitting it in the building, is a “mechanic” or “laborer” within the meaning of the statute. But this contention, we think, cannot be sustained, as will appear by reference to some of the adjudged cases construing similar statutes. Section 10 of the statute concerning railroad companies (Wag. Stat. 302) provided that “as often as any contractor, etc., shall be indebted to any laborer for thirty days, or any less number of days, labor performed, etc., such laborer,” etc. In Groves v. Railroad, 57 Mo. 304, it was declared that a construction of the above language could not be made to include those who furnished teams and wagons and drivers hired by them to haul and deliver stone or other material in the construction of the road. It was declared further that this statute was intended for these poor laborers, who are dependent upon their own manual labor for their daily support, against the fraud or insolvency of irresponsible contractors, citing Balch v. Railroad, 46 N. Y. 551.
Avery v. Supervisor, 71 Mich. 538, was a suit by a subcontractor on a bond given under a statute very analogous to the one here. There the requirement of the statute was that the bond taken with security should
In Indiana it has been declared that there is a marked and enforced distinction between subcontractors and laborers. Farmer L. & T. Co. v. Railroad, 127 Ind. 250; Barker v. Buell, 35 Ind. 297; Colter v. Frese, 45 Ind. 96.
In Georgia, under .the acts giving to “masons” and “carpenters” a lien for their work and materials found by them, they must, to entitle themselves to tbe benefit of the act, have contracted in that capacity. Pitts v. Bomar, 33 Ga. 96.
In harmony with tbe doctrine of the aboved referred to cases are Shields v. Morrow, 51 Tex. 393; Huck v. Gaylord, 50 Tex. 578; Duncan v. Bateman, 23 Ark. 327.
Tbe conclusion to be deduced from these cases is, that a subcontractor is no more a “mechanic” or “laborer” than the principal contractor, and that the beneficial provisions of tbe statute relied on in this
And, even though the plaintiffs paid off the laborers and mechanics employed by them 'in executing their subcontract, there is no principle upon which they can be subrogated to the rights, of such laborers and mechanics. The statute conferred a mere personal privilege or right upon them, which was in no sense assignable. Griswold v. Railroad, 18 Mo. App. 52; Brown v. Railroad, 36 Mo. App. 458; Tewksbury v. Bronson, 4 N. W. Rep. 749; Jones on Liens, secs. 1493, 1494.
It, therefore, inevitably follows that the petition not only failed to state a cause of action, but the theory upon which the case was submitted to the jury by the plaintiff’s instruction was an erroneous one, and should not have been given. The defendant’s instruction in the nature of a demurrer should have been given. The judgment of the circuit court must be reversed.