Multnomah County v. United States Fidelity & Guaranty Co.

180 P. 104 | Or. | 1919

JOHNS, J.

The action is founded upon Section 6266, Lord’s Oregon Laws, which provides as follows:

“Hereafter any person or persons, firm or corporation, entering into a- formal contract with the State of Oregon, or any municipality, county, or school district within said state, for the construction of any buildings, or the prosecution and completion of any work, or for repairs upon any building or work, shall be required before commencing such work, to execute the usual penal bond with good and sufficient sureties, with the additional obligations1 that such contractor or contractors shall promptly make payments to all persons supplying him or them labor or materials for any prosecution of the work provided for in such contracts”; etc.

The statute was enacted in 1903 and is entitled:

“An act to protect subcontractors, materialmen and laborers furnishing material for doing work upon public buildings, structures, superstructures or other public works”: Laws 1903, p. 256.

1. Under the rule of construction, this statute should be read into and become a part of the bond.

In the case of Multnomah County v. United States Fidelity & Guaranty Co., 87 Or. 198 (170 Pac. 525, L. R. A. 19180, 685), an action^ was brought by the county against the defendant, for and on behalf of L. H, McMahan, against the same defendants here for the use of a caterpillar engine which it is alleged that McMahan hired to Sweeney and for the use of which he agreed to pay $10 per day. There, as here, a general demurrer was filed to the complaint and sustained by the trial court upon the theory that the use of the caterpillar engine did not come within the terms of the bond. That ruling was reversed by a decision of this court, written on January 22, 1918, by Mr. Justice Bean.

2. The law of that case is vigorously attacked by respondent, but it has been in force and effect for more than one year, and it is a matter of common knowledge that in the ordinary course of business many such bonds have been written in that time and the decision must have been known and acted upon at the time of their execution, and that case should now be stare decisis.

The purpose of the act was to protect all persons supplying “labor or materials for any prosecution of the work provided for in such contract” and there is much stronger reason for holding that the use of horses comes within the meaning of the word “labor”as.used in the act than the rental of a caterpillar engine employed on the work. A caterpillar engine is a machine; a horse is a domestic animal with some degree of intelligence.

The respondents have cited definitions from Words & Phrases and the New Standard Dictionary as to the meaning of the words “labor and material” and of the word “labor,” but Century Dictionary defines the word “labor” as “work done by a human being or an animal,” and Words & Phrases, Volume 5, page 3951, says:

“Within the meaning of a statute giving a lien to ‘laborers and for persons furnishing materials to. contractors or subcontractors’ labor done by a man’s team may be fairly regarded as labor done by him, no right arising to anyone out of its services except to him,” citing Chicago N. E. R. Co. v. Sturgis, 44 Mich. 538, 541 (7 N. W. 213, 214).

The opinion in that case says:

“But the labor done by a man’s team may be fairly regarded as labor done by him within the meaning of this statute.”

The same authority also cites the case of Hogan v. Cushing, 49 Wis. 169 (5 N. W. 490, 491), in which the syllabus says:

“The ‘labor and services’ for which Chapter 95 of 1877 gives a lien upon logs, are not merely the personal manual labor and services of the claimant, but include those performed by his teams and servants.”

3. If O’Neil in person or through his own employees had used his horses in the “prosecution of the work” there would be no question about his right to recover for the joint services of both horses and men. On legal principle, the same rule should apply where he hired out his horses to another to be used and they were so used. We hold that the word “labor” within the meaning of the act should be construed to include the services which the horses performed in the “prosecution of the work.”

Judgment is reversed. Reversed.

McBride, O. J., and Bean and Bennett, JJ., concur.