Aсtion upon contractor’s bond. Jury waived and trial by court. Judgment for plaintiff against Warrick, principal in thе bond, and judgment in favor of Seifert, Fields and Sigler, the sureties on the bond. From the judgment in favor of these sureties, the plaintiff appealed.
Mr. Warrick, the principal in the bond, had built an addition to a schoolhousе in Consolidated School District No. 1 in Butler County, Missouri, and made some repairs on the main building. He had purchased material from plaintiff to use in doing the work for which *511 plaintiff had not been paid and this suit was brought upon the bond given by Warrick, the supposed contractor, to the school district.
The plaintiff seeks to reсover against the sureties on the bond upon the theory that the bond is a statutory bond given under sections 1040 аnd 1041, Revised Statutes 1919, which makes it -the duty of a school board when letting a contract for work on a school house to require the contractor to furnish a bond conditioned that he will, among other things, pay fоr all material which he may use in performing the work under his contract.
The defense of the sureties is based on the ground that there was no contract entered into between War-rick and the School District and for that reason the bond, if attempted to be given under the statute, was void because there was nо contract between the alleged contractor and the School District to support the bоnd and it was, therefore, without consideration. They further contend that the bond they executed was not а statutory bond and does not bind the sureties to pay for material sold to the alleged contractоr to be used in the building.
In the view we take of this case, it will not be necessary to set out the terms of the bond. Thе bond, however, does not in terms follow the language of the statute nor does it make any mention of mаterialmen. We are of the opinion, however, that under the recent holding of the Supreme Court in Fоgarty v. Davis,
A contract with a sсhool district can only be made in writing as provided in the statute and anything’ short of that is not a contract. The only thing’ done in this case toward the execution of a contract in writing with the school district was the submission оf a bid on the work by Mr. Warrick. That bid was in writing and is as follows : “Will do said work on old building, put up one new room. Furnish all materiаl, labor, for Eleven Hundred and Fifty-Dollars ($1150). H. Warrick.”
Nothing was entered on the record of the school district and there is no writing of any kind to show that the bid of Mr. Warrick was accepted by the school district.
It might well be doubted whether the bid of Warrick, standing alone, describes the building to be built and the work to be done with sufficient definitenеss to make a binding contract had it been properly accepted by the school board. But, waiving that question, we are sure under the authorities above cited that with no writing at all to show that the schoоl board ever employed Mr. Warrick to do anything there was no contract between them that the lаw can recognize, no matter what may have been said by members of the school board to Mr. Warriсk in relation to the matter. Mr. Warrick evidently understood that he was employed by the school board tо do the work for the district but he and every other person dealing with a school board must be held to know that he cannot make a contract with a school district except by complying with the statute and рutting the contract in writing as the statute provides must be done. When he takes any other course, he doеs so at his own risk. In this case he was fortunate enough to secure his pay for the work so he cannot сomplain. The sureties on his bond, however, are not estopped to assert that there was no contract between Warrick and the school district. The *513 bond which they signed was given to guarantee the performance of a contract between Warrick and the school district and since there was no snch contract, there was no consideration for the bond. A want of consideration may be shоwn to avoid any contract when there is .no question of an innocent holder or purchaser involvеd. The bond in this case was given to the school district to guarantee the performance of a contract by Mr. Warrick, but when it developed that there was no contract between Warrick and the sсhool district, then, in the very nature of things, the sureties on the bond could not be bound to guarantee the pеrformance of a contract that did not exist. The supposed contract between Warrick and the school district was void ab initio and not merely voidable, and since it had no validity, the bond given to secure its performance had no validity. For that reason the plaintiff had no remedy against the sureties on this bond and as to them, the judgment was for the right party.
Judgment affirmed.