147 Mo. App. 177 | Mo. Ct. App. | 1910
(after stating tbe facts).— Tbe paper filed as an abstract is attacked by counsel for respondent as not being sufficient in any respect; among others, that it fails to show tbe filing of record of a bill of exceptions. An examination of this so-called abstract, while showing many defects not necessary to be noted or commented on here, although not very clearly set out, does show that the bill of exceptions was duly filed in vacation by tbe clerk and within
We have set out the finding of facts made by the court. It sustains all the material allegations in the petition.
The sole question which we consider necessary to consider at any length is the question of the sufficiency of the petition to sustain the judgment. Recurring to the objections made to the petition, it is urged that the bond there set up and pleaded does not include this plaintiff, he not being named in it, not being within its terms, but a stranger to it; that the bond is limited by its terms and scope to those who have a right to mechanics’ liens, and as there can be no mechanics’ liens against a public school building, it does not protect that class of claimants, of whom plaintiff is one; that no one but the school district itself is under protection of the bond; that “the clear and unequivocal wording of the bond in question is that it was made for the benefit of those and only those who might, under the statute, become entitled to liens.” Section 6761, Revised Statutes 1899, provides:
“All . . . school districts making contracts for public work of any kind to be done for such*185 . . . school district, shall require every contractor to execute a bond with good and sufficient securities, and such bond among other conditions shall be conditioned for the payment for all material used in such work, and all labor performed on such work, whether by subcontract or otherwise.”
We have set out the conditions of the bond as pleaded in the petition. It is not necessary to repeat them here. Over and beyond the obligation to pay for all material, etc., furnished Beggs in the construction of the building, is the distinct clause that the bond “is made for the use and benefit of all persons who may become entitled to liens under said contract, or to whom said Beggs might become indebted and that it might be sued upon by such persons as if executed to them in proper person” It is true that this clause is not in the language of section 6761, but while rather awkwardly expressed, it effectually covers the idea of that section. Discarding the statute, it is a good common-law bond, and very clearly sets out those who are to be within its protection. Nor is the expression in it, that those who may be entitled to mechanics’ liens are within it, to be taken literally, for no one can be entitled to a mechanics’ lien against a public building. Hence this clause might be read as if in these words: “Those who but for the provisions of the law exempting public buildings from mechanics’ liens are entitled to enforce a lien.” But this bond, as pleaded, does not end with this provision as to protection of mechanics’ lien claimants. It protects these as well as those “to whom the said J. E. Beggs might become indebted for labor performed on said building or materials furnished and which entered into its construction.” It is made for the use and benefit of “all persons who may become entitled to liens” — that is one class; “or, to whom said Beggs may become indebted,” and that is another class; then, covering both, it provides, “it might be sued upon by such persons, as if executed to
As is said in the Luthy case, it is not necessary to resort to any supposed equity even to entitle the mate-rialmen to sue. Their right arises from the very terms of the bond; the bond and its condition are pleaded; the plaintiff is within not alone its spirit, but its very terms. _ If necessary to go that far, we would be inclined to hold it good even under the statute.
We conclude, therefore, that the petition here does state a good cause of action and the finding and judgment of the trial court are fully sustained by it. Judg- ' ment affirmed.