*1 PIPER-HOWE LUMBER CO. PADGETT 811 PIPER-HOWE LUMBER a COMPANY, Corporation, Respondent, M.
v. C. PADGETT, a Company, Corporation, Northern Trust a TRUST Company, Corporation. NORTHERN COMPANY, Corporation, Appellant.
(215 468.) — — public improvements — statutory contractor subcontractor Bonds bonds.
1. Where a bond is to the state under the of § Com- piled Supplement, Laws of 1913 conditioned for the of claims against contractor on account labor or materials furnished in and about a public of a performance improvement, any person having contract may contractor subcontractor sue in his own name the bond. — — highways repair furnisher material
Contractors or construct — protected by held, opinion, 2. It for reasons stated in the given by one work, highway construction who contracted for conditioned for the laborers, wages of labor or services and for material to contractor, protect be furnished one material merely repair equipment. contractor to be used construction and August petition Opinion filed 1927. On for modification October 1927. Bonds, p. Highways, n. O. 152 87 73. p. 9 J. 29 O. J. 3-53 612 § § n. 65. from the District Court of Ward
Appeal County, J. Moellring, and remanded. Reversed Brace, Palda, Jr., Falda, JE.
L. J. G. and Bobeert W. for appellant. in this state is that actions “The rule warehousemen’s bond be instituted but must be creditor, by any behalf of all others situated.” themselves and similarly Phillips v. Semingson, Ertelt N. D. 47) Lillethun, 145 N. W. 825. in a bond is intended to cover
“The condition payments (1) materialman and On laborers to maintain action on Annotation.— (N.S.) 1175; works, public see annotation in L.R.A. R. C. L. Supp. 4 R. L. R. G. 1 C. L. 1473. the visible materials furnished for direct use and in the incorporation work and for to the men whose services are directly employed *2 the work.” Sica doing v. 403; Fed. Lum- Kimpland, Chicago ber Co. v. 89 Kan. 44 L.B.A. Douglas, 131 Pac. 308, 843, (N.S.) 563. a
“The
of the
and has the
to
surety
law,
favorite
stand for
his
the strict terms of
when such terms have been ascertained.
obligation
This rule is
all
circumstances.”
applicable
State v.
54 N.
Padgett,
D.
McGee for respondent. “A bond will be construed statutory of the light which it is as in the statute.” expressed v. Payseno Padgett 154. ante,
“A finished will improvement embody value nothing that might not as be classed service labor, or material, and clear intent of both the contract and the statute is all who protect have persons furnished either service or material.” labor, Ibid. See Yards v. Thompson 54 N. D. 208 N. W. 949. Kingsley,
Unless the account stated is
as fraudulent
challenged
binds
thereto. Foster v.
Dwire,
N. D.
parties
581,
PIPER-HOWE LUMBER had-been credited suit, during pendency reducing inent from amount trust defendant claimed.) company appeals judgment.
There are two
contentions on the
com-
major
first,
appeal;
state a
action
defendant,
cause of
plaint
Northern Trust
for the reason that
bond is
Company,
one within
is to
as
for all of a
class,
state and
serve
that no
security
class is
the materials
himself;
entitled
sue for
and, second,
of the bond.
to the contractor were
within the
protection
The rule
in this
warehouse
pertaining
jurisdiction
respect
first
invoked
contention. Phillips
Seming
support
142 N.
D.
son,
Lillethun,
Ertelt
D.
825.
Gruman v.
N.
Lillethun, 27
145 W.
It is held in these
cases that
being given
equal pro
*3
tection of all
the
can
beneficiaries,
be made available to the class
an action
on behalf of all its
only
members. The rule
through
brought
been
to
has
Co. v.
applied
depositary
(Illinois
United
Surety
141
C. A.
226
States,
C.
Fed.
421,
to
bonds of
665)
statutory
2
ticket
See N. Y. Consol.
agents.
Laws, 1909,
1211; Guffanti
p.
v. National
Co. 133
Div.
N.
Surety
118 Y.
610,
App.
207, same
Supp.
196 N.
case on
in
Y.
134 Am.
St.
appeal
90
E.
Rep. 848,
Illinois
Co. v.
Surety
Mattone,
Div.
App.
Y.
v. Illinois
Supp. 928; Cappadonna
Co. 68
Surety
Misc. 470, 125
N. Y.
Tuzzeo v. American
Supp.
N. Y.
Bonding
N. Y. in nor, case that has 180); come to any our attention, does the under statute which the bond was contain given so language to strongly sue as expressing right does the beneficiary statute under consideration. Section Laws of 1913 and Compiled Sup The statute “. . reads: . The plement. obligee said shall bond North Dakota: state of but lawful any person having any contractor, subcontractor, account of or ma- labor n said con- both, furnished and about
terials, name in his own institute an action to recover the same tract, may effect as said in the same manner and with like though him.” said bond were made to payable it is seen that is not to
Thus, the beneficiary man- sue in the same institute the action his own but he name, may to ner and with the same effect as the bond were made though payable he him. bring We cannot add to language requirement similar interests without suit in the names of all having other parties the statute. modifying
It is is entitled to be suits suggested obligor protected against that its if further, subjected various beneficiaries by and, liability, numerous exceed suits, might penalty When These contentions answered. may briefly obligor gives a statute it must be assumed that the contract is made bond required by statute in in- mind; therefore, with the and, have undertaken become liable at the suit of stance, a claim the same manner and with like effect as though having to such cannot were made person. obligor complain, payable when sued such person. therefore, contains no warrant that an
The statute assumption obligor is- in excess of the of the bond. When the be held penalty penalty may n exhausted in satisfaction full to beneficiaries of established at an end. The fear of the that if sub claims, liability surety instance claimants suits at the be held beyond jected *4 an of seems to be the court grounded expression supreme upon penalty, in of v. Illinois Co. 68 Misc. York the case Cappadonna of New in which a doubt was 125 N. Y. intimated as to of judgments the defendant could the recovered whether plead payment at full amount at law the where that would paid in actions thereon the rata share of the creditor. amount to more than pro Obviously, is thus that such a limited decision the right plead payment proceeds the that claimants under the only liability assumption upon claimants which in to all must be enforced a suit liability bond is recover his rata in in which each could share. Where pro equity of to sue is, statute, a claimant by express language permitted no could follow and the of an name, in his own such result payment PADGETT CO. v. LUMBER PIPER-HOWE in amount. like reduce the liability operate established whether or as to be construed deciding here is that is said Nothing his a claimant on such a bond by be brought a suit equity exist where facts interested of all other parties and behalf own right such suit may whether nor as relief; deciding equitable warranting what circumstances or in of an the instance obligor, at be maintained however, statute, Under be interposed. defense may equitable an. for equita- would not be a ground alone liability of excessive danger ble interference. was used by material of the supplied
Considerable it was used horses; some of to shelter of bams construction haul- and boxes for to make repair dump some houses, bunk sheds and contractor. Some used by and to fix up ing gravel from could be moved skids so they structures placed of these might required or as they as the work progressed place place whether or not sup- plaintiff, other job. question some The proposal accepted such materials, by protected plying furnish all machinery, him “to necessary the contractor obligated by and to furnish means construction labor and other tools, equipment, “fur- that he should the contract materials provided all specified,” work and labor do and all the all material and and deliver perform nish conformity in strict and entire and delivered, to be furnished The bond and bond contract, proposal.” with and faithful compliance conditioned for was “and or persons per- of the state for the contract, protection material be used services dr labor or any forming “for of the laborers, payment loss,” any of this under the terms material and all It is conceded him contractor).”- (the is to contract fence such as snow rail, and used for purposes guard material supplied and is within like integral part highway or the becomes material for contractors’ equip- it is but argued is not ment protected. and the bond that the contract language will first be noted
It the contract and as that of case is not as broad in the instant D. Co. 49 S. Lumber Co. v. National Surety Anderson case J. F. where the con- relied respondent, W. 53, *5 tractor all just “to agreed claims, material, tools, pay supplies, appli labor ances and all incurred him or of his just other claims subcontractors in out the of this carrying contract,” further that the contract should be agreed bond held to cover all such bond to the contract and claims, referring conditioned for the being faithful its of all covenants terms, and conditions. Neith nor er the contract the bond the instant case contains any express for agreement covering or claims supplies, just appliances out the contract. are carrying They co'ncerned arising merely of and means furnishing of construction and there is no contention that these have not been furnished. The express obliga tion is found in condition of bond pay state requiring as well as or labor protected or serv persons performing or ices material and covering specifically payment laborers material for which the contractor is obli under the terms of the gated contract. This court has held that a bond of this character does not obligate the bondsmen for premiums owing to the Workmen’s Fund ex Compensation (State rel. North Dakota Workmen’s Fund v. Comp. Padgett, 209 N. W. 388), while it does cover an amount for the hire of owing horses used in the work of construction Co. (Payseno ante, 154, that it cover ; and 836) obligations incurred and oil gasoline in motor used vehicles employed carrying the work of construction. v. Dakota Ya Trust rger ante, 535, 209.W. Under form of and contract in bond question, a distinction therefore, exists an between jurisdiction obligation contractor incidentally on account of the incurred contract and obligations incurred for ma or services which terial, labor contribute work in hand. directly are opinion We incurred for obligation purchase or tools accommodations for machinery provide the men employed the horses that shelter used work, inci merely and not such a direct contribution as the dental designed will serve useful cover. It no to again survey authorities nor hand; to further bearing upon question emphasize distinc in the terms of tions based differences the bonds. See Franzen Co. 46 A.L.R. and note Southern (35 Wyo. Pac. 30). *6 PENNEY
O’BRIEN v. CO. Nor the from must re- reasons stated, appealed judgment for further not versed and the cause remanded and findings judgment this recover costs on the inconsistent with opinion; appellant It is so ordered. appeal. and concur. JJ.,
Nuessle, Christianson, Burke, Burr, Petition for (On Modification) have modifi- Ch. J. The filed petition respondents Birdzell, cation of the which will further in the court opinion permit proceedings if below need and be, by way amendment, proof plaintiff materials will between into the construc- entering distinguish tion of the for which be had under the recovery may highway, and materials which were for which consumed there can equipment, be no this action. In the interest of seem justice recovery should recover bond for permitted for the former materials which it has not received Since can not payment. findings judgment proper is remanded for retrial. The en- record, cause appellant to the costs of first trial and to costs court. titled concur. JJ., Christianson, Burke, Burr, Nuessle, J. C. PENNEY O’BRIEN, JOHN v. J. Respondent, COMPANY, and N. Clausen, Corporation, Appellants.
(215 268.) — Brokers in instant case evidence held to sustain verdict for broker’s services. performed to recover the reasonable value of services In an action at defendants, examined, request and for reasons instance record opinion, stated it is held: (a) evidence, erroneous, rulings questions even certain if That prejudicial. (b) That the evidence is sustain the verdict of jury. sufficient to 55 N. Dak.—