179 Ind. 309 | Ind. | 1913
Appellee sued James W. Fry and Frank Lewark as partners and contractors under the name and style of J. W. Fry & Company for the construction of three separate sewers in the city of Greensburgh under contracts with that city, and six other persons as sureties upon three several bonds claimed to have been executed by them as sureties for J. W. Fry & Company, for the performance of their contracts and payment for material, sewer pipe, claimed to have been ordered by the contractors for the construction of sewers contracted by them to be built in Greensburgh, under the style of J. W. Fry & Company, and shipped to Greens-burgh, consigned by that style.
The complaint is in one paragraph, counting upon three separate contracts, and three separate bonds executed concurrently therewith, and the complaint was challenged upon 'the ground of its insufficiency of facts to constitute a cause of action. In one of the contracts it is provided that thcontractor will “save the city free and harmless from any and all liability that may be occasioned through any fault or negligence on their part or their agents or employes in the performance of the conditions imposed upon them herein ; that they will pay for all materials and labor, and save the first party free from any and all liability from liens.” Two of the contracts provide that the contractor will save said city free and harmless from any and all liability that may be occasioned through any fauLt or negligence on their part, their agents or employes in the performance of the conditions imposed upon them herein; that they will pay for all materials and labor and save said first party free from any and all liability by reason thereof and free from any and all liabilities from liens, etc. Two of the bonds are conditioned that the contractor “shall well and truly perform all and severally the conditions” of the contracts and hold and save the city harmless and free from liability or
There is some conflict in the evidence as to whether James W. Pry and Prank Lewark were copartners in the contracts and bonds sued on. Neither of them is here as appellant,
The judgment is affirmed.
Note.—Reported in 101 N. E. 10. See, also, under (1) 5 Cyc. 753; 28 Cyc. 1039; (2) 5 Cyc. 742; (3, 5) 28 Cyc. 1040, 1041; (4) 5 Cyc. 756, 757; (6) 28 Cyc. 1041; (8) 5 Cyc. 758; (9) 32 Cyc. 106; (10, 11) 32 Cyc. 127; (12) 32 Cyc. 89; (13) 32 Cyc. 138; (14) 32 Cyc. 57, 69; (15) 32 Cyc. 149, 184; (16) 2 Cyc. 223; (17) 2 Cyc. 156; (18) 2 Cyc. 190; (19) 32 Cyc. 67. As to the effect of adding materially, in a statutory bond, to the conditions prescribed by statute, see 67 Am. Dec. 772. As to public buildings, etc., as subjects of mechanics’ liens, see 27 Am. Rep. 83. As to liens of material men, see 79 Am. Dec. 268. As to what generally will release or discharge a surety, see 28 Am. St. 691. As to material alteration of the contract and its effect on the surety, see 6 Am. St. 459. On the question of the nature of labor or materials which will support an action on a contractor’s bond, see 43 L. R. A. (N. S.) 162. As to the right of subcontractor, materialman, or laborer to maintain action on contractor’s bond to owner, see 27 L. R. A. (N. S.) 573. On the effect of invalidity of contract for public work on the liability of the contractor’s bondsmen for material, etc., furnished in carrying out the contract, see 13 L. R. A. (N. S.) 793. For implied power to incorporate in contractor’s bond a requirement that the contractor shall pay laborers and materialmen, see 11 L. R. A. (N. S.) 1028.