203 N.W. 131 | Mich. | 1925
Defendants Oosting and Hofsteen contracted with the State to construct eight miles of improved highway lying between Decatur and Glenwood. They gave the usual statutory bond prescribed by 3 Comp. Laws 1915, § 14829. The other defendants are sureties thereon. The contractors sublet to one Rodney McLeod, who owned a fleet of trucks, the job of hauling the gravel from the railroad cars and distributing it on the highway. Plaintiff was a vendor of gasoline and furnished McLeod gasoline with which to operate his trucks. After he had furnished gasoline to the value of $1,000, McLeod paid $300 thereon. This was not satisfactory to plaintiff and he sought an interview with Oosting and Hofsteen, and said to them that he could not furnish McLeod any more gasoline unless some more satisfactory arrangement was made about making payment therefor. It is plaintiff's claim that this talk resulted in an agreement whereby Oosting and Hofsteen agreed that if plaintiff would continue to furnish McLeod gasoline for his trucks they would deduct it from McLeod's contract when the job was finished. In reliance upon this promise plaintiff continued to furnish gasoline to McLeod until it amounted to $1,646.28. One Archie Woolfe furnished gasoline to McLeod at Decatur with which to operate his trucks until he was owing $728.84. This claim was assigned to plaintiff. Defendants failed to make good their promise, and plaintiff began this suit to recover for these two items of gasoline. The declaration counted on the bond which defendants had given, also upon defendants' promise to retain enough from McLeod's contract to pay his claim. The trial court refused to permit plaintiff to recover on the bond and refused to permit a recovery on the Woolfe claim, but submitted to the jury plaintiff's claim that defendants had promised him to retain sufficient to pay his claim. The jury returned a *3 verdict for plaintiff. Both parties have assigned error.
Was plaintiff entitled to recover on the bond? The condition of the bond was in compliance with the statute, and in the following form:
"Now, therefore, the condition of this obligation is such that if there shall be paid, as the same may become due and payable, all indebtedness which may arise from said contractor to a subcontractor or party furnishing labor or furnishing materials, or from any subcontractor to any person, firm or corporation on account of any labor or materials furnished in the erection, repairing or ornamentation of such building, improvement or works, then this obligation to be void, otherwise to remain in full force and virtue."
The argument is made by plaintiff that the gasoline furnished and consumed in furnishing power to convey the gravel became a part of the highway and enhanced the value of the same and should be regarded as materials going into it.
The defendants take issue with plaintiff on this contention and insist that the question has been settled by this court adversely to plaintiff's contention.
The contract by which defendants undertook the work of building the highway contemplated that the gravel should be transported from the railway cars to the highway. It required power to do this, and the gasoline in question furnished the power. It is true that the gasoline was not visible after the highway was finished, but it was as visible as the labor which was bestowed upon it. It was used directly upon and for the highway and was instrumental in producing the final result. In most jurisdictions powder and dynamite used for blasting have been regarded as "materials furnished." The use of gasoline to convey materials with which to build this highway contributed to and enhanced its value in the same way that powder and dynamite do in blasting for highways. *4 Neither is physically incorporated into the highway, but both are wholly consumed in aid of the work. The gasoline contributed to and enhanced the value of the highway as much as though the gravel had been moved by man power or horse power. The statute contemplates that labor and materials used in constructing, repairing or ornamenting a building, improvement or works shall be protected by the bond. As the gasoline in question materially aided in the construction and building of the highway, and enhanced its value, it should be regarded as "materials furnished," within the meaning of the statute.
There is an interesting discussion of this question inJohnson v. Starrett,
"From a practical standpoint we think it cannot be justly said, under the plain terms of the statute, that those furnishing the coal, gasoline, and dynamite, did not 'contribute to the improvement' of defendant's property by 'furnishing material for excavating the same.' Clearly the work of the whirly and motor trucks contributed to the improvement of defendant's property, and as the coal and gasoline furnished the motive power for its accomplishment, the contractors would have been entitled to a lien therefor. But it is said that these materials were not furnished to excavate defendant's premises or for them, but, on the contrary, for use in and as a part of the plant and equipment of the contractors for the purpose of creating *5
power, and therefore were not lienable. This contention, we think, is too restricted both as to the facts and law. It ignores both the policy and settled construction of the statute and also modern methods employed in performing building contracts. Both the coal and gasoline were materials, and both were components of the resultant achievement. Had the excavation and removal of the earth been done by manual labor the right to a lien therefor would be undoubted, and we cannot differentiate such a case from one where the same result is reached by other and modern methods. The value of defendant's property was thereby enhanced, and it can make no difference that this was accomplished by use of power obtained from materials furnished by the lien claimants instead of by common labor. See Fay v. Bankers' Surety Co.,
The courts are not in accord on the question. A large number of cases which discuss the question are cited in the foregoing opinion. But counsel argue that the question was settled in the case of City of Alpena, for use of Gilchrist, v. Surety Co.,
This case was begun by plaintiff in his own name. These cases have usually been commenced in the name of the people of the State of Michigan for the use and benefit of the claimant. Counsel for defendants raise the question that it was improperly begun for *7
want of proper parties. This court held, prior to the judicature act, that suits upon these bonds should be begun in the name of the people for the use and benefit of the claimant.People, for use of Higley, v. Laidlaw,
The bond is given to the people of the State for the benefit of a class or classes. If, subsequently, one becomes a member of the class, we can see no impropriety in his beginning his suit in his own name to enforce his claim. The provision of the judicature act referred to evidently intended to enlarge the remedy of a beneficiary in contracts so as to enable him to enforce his beneficial interest directly by suit in his own name. Having reached the conclusion that plaintiff is entitled to recover on the bond, it will be unnecessary to discuss other questions raised.
Judgment is reversed, with costs of both courts to plaintiff. New trial ordered.
McDONALD, C.J., and CLARK, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ., concurred. *8