174 Mo. App. 28 | Mo. Ct. App. | 1913
Jackson county, Missouri, entered into a contract with the defendant, Freeborn Engineering and Construction Company, whereby for $'24,500 the latter agreed to furnish all labor and material to fully equip a water and septic tank system in the Jackson County Home for the Aged and Infirm. This contract provided that said construction company should give , bond to the county in the sum of $12,250, conditioned that said construction company “shall pay for all material used and labor performed on this contract.”
Pursuant to the contract, a bond was executed by the construction company as principal, with National ■ Security Company, as security, conditioned’ that the said principal “shall pay all bills for material used -in said building and labor performed thereon under said contract.”
The construction company sublet a portion of its contract involving about $7000, to Allison &’ Hudson, a firm of plumbers. In attempting to carry out their subcontract, Allison & Hudson bought of relator a quantity of iron pipe, fittings, connections and plumbing fixtures, which the relator sold for, and delivered at, the-Home to be used in the construction and installation of said plant.' While no part of said materials
The sole question presented by appellant is whether or not relator is among those for whose benefit the above mentioned bond was given; or, in other words-, whether or not relator is included within the terms of the bond. Appellant claims that, as relator did not furnish the materials directly to the Freeborn Construction Company but only to -a subcontractor, relator is not within the terms of said bond.
The contract and bond being executed simultaneously and for a common purpose, they are to be treated as one. And, in order to properly determine the question raised by appellant we must ascertain the intention of the parties as expressed in the contract and bond. And while that intention must be found within, and not outside of, the language used, yet we have a right to consider the situation of the respective parties to the contract and bond and the evident purpose they had in entering into them.
The language of the contract is that the Freeborn Engineering & Construction Company shall give a bond conditioned for the faithful performance of the contract and that it will “pay for all material used and labor performed on this contract.” It does not read “for all material furnished to said construction company,” but “for all material used.” The language of the bond is equally broad and inclusive. In it the principal and surety declared themselves “firmly held and bound unto Jackson county, Missouri, and unto all persons having the right to sue hereon under and by virtue of sections 6761 and 6762 of the Revised Statutes of Missouri, 1899.” And the condition is that
It cannot be said that because the bond refers to persons having the right to sue by virtue of the sections as they appear in the Eevision of 1899, and makes no mention of these sections as re-enacted in 1909, that the bond must, therefore, be interpreted and construed solely in the light of the sections as they were prior to the Act of 1909. Because the law says the bond shall be to the county, and also provides for a right of action thereon by every person furnishing material. So that, under the law, such person would have a right of action on the bond without regard to whether the words, “and unto all persons having the right to sue hereon under and by virtue of sections 6761 and 6762 of the Eevised Statutes of Missouri, 1899,” were in the bond or not. It being the duty of the court to demand the bond required by law, and it being executed under the law, no terms of the bond could limit the rights explicitly given therein by the law. Besides, when the sections under which the bond was given are referred to therein, the evident intention Avas to refer to the law as it then existed and not as it had stood at some former time.
Nor can section 6762, as re-enacted, be regarded as giving a right of action only to those furnishing material directly to the original contractor. Because the two sections must be construed together, and section 6762 evidently gives a right of action to all persons for whose benefit and protection a bond is required by. section 6761. It is inconceivable that the Legislature would, in one section, require-a bond to be given for the payment of all material used whether by subcontractor or otherwise, and then in the next section limit the right of recovery on said bond to a
In support of appellant’s contention that relator is not within the terms of the bond, we are cited to Berger Mfg. Co. v. Lloyd, 209 Mo. 681. But, in that case, not only was the language of the contract and bond narrower than in the one here, but also the facts were different and the bond was executed prior to the enactment of 1909. The Berger case was first decided by the St. Louis Court of Appeals. [Berger Mfg. Co. v. Lloyd, 113 Mo. App. 205.] The majority opinion, written by Judge Goode, shows that the contract, instead of providing for the payment by the contractor of “all material used on this contract” as the one before us does, provided simply for the payment of all materials “furnished to the contractor,” and on this point the St. Louis Court of Appeals held that the Berger Company had not furnished the materials to the contractor. While the terms of the bond were broader than those of the contract in that case, yet the facts did not bring the Berger Company within the meaning of the bond since the material was sold and delivered to a manufacturer at its shops where it was manufactured into articles which were then used in the building. In other words, the Berger Company did not furnish to the contractor material that Was used in the building within the scope and meaning of the bond. The case was, on the dissenting opinion of Judge Bland, transferred to the Supreme Court, where the conclusion reached by the majority opinion of the St. Louis Court of Appeals was upheld. The Supreme Court say the determination of the question whether the Berger Company could recover on the bond in that suit “must be solved by ascertaining the intention of the parties to the contract and bond.” The contract, as shown above, was not broad enough, because, as held by the Supreme Court, the contention of the plaintiff was unsound, that, as the materials
With regard to the intent and purpose of the two sections of the statute relating to bonds of this character, it has been frequently said that they are to give protection to every person who would have had a right to file a mechanic’s lien on the building except for the fact that buildings of the corporations named in the act are exempt from the operation of the mechanic’s lien law. [Press Brick Co. v. School District, 79 Mo. App. 665, l. c. 669; Board of Education ex rel. v. United States Fidelity Company, 149 S. W. 46, l. c. 50.] There is no doubt but that if the building in question was not exempt from the operation of the mechanic’s lien law, the relator in this case would be