42 Ind. App. 597 | Ind. Ct. App. | 1908
This action was brought by appellee against the appellants upon a builder’s bond given by them to Laycock and wife in connection with a building contract entered into at the same time between the Laycocks and appellant Charles A. Gwinn, in which said Gwinn contracted to construct for the Laycocks a dwelling-house in the city of Indianapolis, and recovery is sought for the price of materials furnished by appellee to the contractor, and used in the construction of the building. Appellants ’ demurrer to the complaint was overruled, answer filed, cause tried, finding rendered in favor of appellee for $152.84, appellants’ motion for a new trial overruled, and judgment rendered on the finding.
The errors assigned, presented by the record and discussed in appellants’ brief, call in question the sufficiency of the complaint and of the evidence to sustain the finding.
The bond which forms the basis of appellee’s complaint
The complaint sufficiently avers the furnishing by the appellee to the contractor of building material alleged to have been used by him in the construction of said house, for which the statute gave to appellee the right to a mechanic’s lien upon the building and the grounds upon which it was situated, by appellee’s complying with the provisions of the statute on the subject, but contained no averment that a mechanic’s lien upon such building had been at any time perfected for such material furnished. It is earnestly insisted by appellants that under the terms of the bond sued on the
This case is sought to be distinguished from the ease of Ochs v. M. J. Carnahan Co. (1908), ante, 157, and National Surety Co. v. Foster Lumber Co. (1908), post, 671, because by the express terms of this bond it is made payable to “parties who may be entitled to liens,” and expressly declares that it is made for the use and benefit of all persons who may become entitled to liens, according to the provisions of law in such cases made and provided; that by thus expressly declaring the persons who shall be entitled to benefits under the contract, by a. fair implication all others are excluded; and that the appellee in this case failed to bring himself within the conditions prescribed in the bond, in that he failed to show that he was entitled to a lien. The conditions of the bond are practically the same as the conditions expressed in the bond sued on in the cases of Ochs v. M. J. Carnahan Co., supra, and National Surety Co. v. Foster Lumber Co., supra, except that in' this ease there is this express provision in the contract that it is made for the benefit of parties who may be entitled to liens, and that such parties may sue upon the bond.
We think to give this contract the construction contended for by appellants would be to nullify the plain and manifest intention of the parties, and reverse the purpose for which it was entered into by the owners of the property. The demurrer to the complaint was properly overruled.
The judgment is in all things affirmed.