11 Colo. App. 177 | Colo. Ct. App. | 1898
delivered the opinion of the court.
Under an enabling act the designated state officers made a contract in February, 1894, with "William E. Dodge to construct a state reservoir near the town of Saguache in Saguache county. The terms and conditions of the contract are immaterial to the present inquiry. After the contract had been executed and to secure its performance the officers under an authority specifically granted by the act, required Dodge to enter into a bond with sureties for the faithful performance of his agreement. This instrument was in the penal sum of $27,850 and contained sundry conditions. Only one of them is before us on the record. This required Dodge to perform his agreement according to its terms to the satisfaction of the designated officers of the state, and “ to discharge pay and satisfy all just claims and demands and all expenses incurred in the construction and completion of the reservoir, ” and likewise to “ hold the people harmless from all loss, damage, or expense because of any claim, demand, lien or charge of any character. ” He was also required thereby “ to promptly pay all charges justly made against him in the construction of said reservoir. ” This bond was signed by Yates and Wiemann as sureties, who are the parties defending this ap
These are the only facts requisite to an understanding of the case, and on which the court below adjudged the complaint insufficient. We may state generally that this pleading contained enough to state a cause of action, providing the suit could be maintained by the people on the bond, and if the facts warranted judgment against the sureties who guaranteed Dodge’s performance. The general outline of the defense is embraced within the claim that this can under no
The foregoing decisions all proceed on this general line, they support the doctrine by cogent reasons, the cases are
But back of all this there is in the present case another reason by which this action can be supported, and which possibly, takes the case entirely out of the range of the controverting decisions. This is not an action brought by the Colorado Fuel & Iron Company and Hendrie & Bolthoff, as the real parties in interest to enforce the liability of the sureties, but it is a suit brought by the people of the state, to whom the bond runs under the direction of its chief executive on whom the duty is laid, and by the chief law officer of the state, who is the legal representative of the executive and of the people, to enforce a bond given to them which by the terms of the statute they had a right to take, and the breach is sufficiently alleged. It matters not that the benefits of the suit are to go to third persons because the collection is made by the people who have a right to enforce the bond, and it is not for the defendants to say that when the state recovers according to the terms of the contract, they will devote the proceeds to the payment of the debts which the claimants themselves could not enforce against the obligors. As we have already suggested, we do not assent to the latter principle at all, but even if we did as the matter stands, and as the suit is brought, the sureties may not defend on the ground that the money when recovered will be paid by the state to the debtors whom the principal contractor owes. The sureties undertook that the contractor should pay all claims and charges and all expenses and every charge justly incurred in the construction, and when the contractor failed to pay these debts, it was not only the right of the state to enforce that security and compel a payment, but it was a duty which the executive officers owed to the other citizens, and they are discharging their public duty when they compel the contractor and his sureties to perform their contract. When parties become sureties for a person who undertakes to construct a public improvement, they must expect in case he fails to dis
It is insisted that there is a misjoinder of causes of action in the complaint, and for this reason the demurrer should have been sustained. We do not understand that this question is properly presented. As we look at it, there are not two causes of action at all, but it is an action on the bond for the non-payment of claims against which that agreement provided. There are simply two items, one or both of which would be a breach of the bond, and on the recovery of the penalty there could be but one satisfaction and this of the claims which might be proven.
For these reasons we are of the opinion that the complaint, stated a cause of action, and the proof being otherwise sufficient, the plaintiffs may recover.
The court erred in sustaining the demurrer, and the judgment will be reversed, and the case sent back for trial in conformity with this opinion on the issues which may be made.
Reversed,.