— Appellee brought an action against appellants to recover on a bond executed by Edmund S. Petro, as principal, and said appellants, as sureties. The School City of Muncie on May 16, 1908, let a contract to said Petro for the improvement of a school building in said city, and the bond in question was executed for the purpose of securing the proper performance of said contract. Appellee was at the time a corporation engaged in the retail lumber business, and, as such, furnished material to said contractor, which
The bond, executed by said Petro and appellants as sureties, is as follows:
“Know all men by these presents that we Edmond S. Petro and Lawrence H. Klus and David M. Snider, of the City of Muncie, Delaware County, State of Indiana, are held and firmly bound unto the Board of Trustees of School City of Muncie, of said County and State as well as to all persons who may become entitled to liens under the contract hereinbefore mentioned in the sum of four thousand six hundred and fifty ($4650.00) dollars, lawful money of the United States of America, to be paid to the Board of Trustees of School City of Muncie and to said parties who may be entitled to liens, their executors, administrators and assigns; for which payment well and truly to be made, we bind ourselves, one and each of onr heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals; dated this 16th day of May, 1908; The condition of this obligation is such that if the above bounded Edmond S. Petro, his executors, administrators or assigns shall in all things, stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements of the above mentioned contract, entered into by and between the said Edmond S. Petro and the said Board of Trustees of The School City of Muncie, dated on the 16th day of May, 1908 for the construction of the work or works mentioned in the foregoing contract and shall duly and promptly pay and discharge all indebtedness that may be incurred by the said Edmond S. Petro in carrying*351 out the said contract, and complete the same free of all mechanic’s liens, and shall truly keep and perform the covenants, conditions and agreements in the said contract and in the within instrument contained, on his part to he kept and performed, at the time and in the manner and form therein specified, as well as all costs, including attorney’s fees, in enforcing the payment and collection of any and all indebtedness incurred by said Edmond S. Petro in carrying out said contract, then the above obligation shall he void, else to remain in full force and virtue. This bond is made for the use and benefit of all persons who may become entitled to liens under the said contract according to the provisions of law in such cases made and provided, and may be sued upon by them as if executed to them in proper person. In testimony whereof etc., Signed; Edmond S. Petro, Lawrence H. Klus, and David M. Snider.”
It is the contention of appellants that the complaint is not sufficient to state a cause of action against the sureties on the bond, for the reason that the bond sued on shows on its face that it was intended only for the protection of the School City of Muncie and all persons who may become entitled to liens; and that as appellee was not entitled to a lien, it does not fall within the class for whose benefit the bond was executed, and for that reason it cannot maintain an action on the bond.
If the bond was intended to inure to the benefit of persons who might furnish material for such repairs, and who, under the law, were not entitled to acquire a lien therefor against the building, the complaint states a cause of action; hut if it was not so intended, the complaint is insufficient, and the demurrer thereto should have been sustained.
It is contended on behalf of appellant that the bond on its face specifies the particular class of third persons for whose benefit it is made, and that no person other than those included within the class so specified can derive any benefit from its provisions. The maxim expessio unius est exclusio alterius applies to the construction of contracts. Cree v. Bristol (1895), 33 N. Y. Supp. 19, 12 Misc. 1; Hammerquist v. Swensson (1891), 44 Ill. App. 627; Higgins v. Eagleton (1895), 34 N. Y. Supp. 225, 13 Misc. 223; 2 Parsons, Contracts *515.
An examination of the bond sued on shows that on its face it is made to the School City of Muncie as well as to all persons who may become entitled to liens under said contract, and the penalty of the bond is made payable in like manner. Following the condition, the bond contains this provision:
‘ ‘ This bond is made for the use and benefit of all persons who may become entitled to liens under the said*354 contract according to the provisions of law in such cases made and provided, and may he sued upon by them as if executed to them in proper person. ’ ’
Appellants insist that the bond is explicit as to the persons for whose benefit it was made, and as to those who may sue on it; and that as appellee does not fall within the class of persons entitled to acquire liens, it cannot sue and recover on the bond.
All contracts are to be read and understood in the light of the law applicable thereto. If the language of the contract has a certain and definite meaning when considered in connection with the law applicable to the subject-matter with which it deals, the parties will be presumed to have intended that it should have the legal effect which such language implies. If the language used creates certain rights and imposes certain obligations, neither party to such contract can be heard to say that he did not intend that it should have the effect which the law gives to it. Rice v. Dwight Mfg. Co. (1848), 2 Cush. (Mass.) 80; Clark v. City of Boston (1901), 179 Mass. 409, 412, 60 N. E. 793; Wheaton v. Fay (1875), 62 N. Y. 275; Clark v. Lillie (1867), 39 Vt. 405; United States v. McDowell (1884), 21 Fed. 563.
The subject-matter of the contract and bond here in controversy was the repair of a public school building. Under the laws of this State this building could not be subjected to a lien for a claim of any character in favor of any person, and the bond sued on must be considered and understood in the light of this well-settled law.
If the bond does classify the persons to whom the contractor might become indebted in carrying out the contract, and designates one class of such debtors as the persons to be benefited by the condition of the bond, then all' other persons not included in the class so specified must be excluded from its benefits.
The only class of third persons named and designated in the bond as entitled to its benefits is “all persons who may
"When the words employed to indicate the class of persons for whose benefit the bond was executed are considered in the light of the law, and in connection with the contract for the performance of which the bond was given, they are without force, and are meaningless. The bond must therefore be treated the same as though such words had been omitted.
The case of Gwinn v. Wright (1908), 42 Ind. App. 597, 86 N. E. 453, is cited and relied on by appellants. Nothing in that case is at variance with the conclusion reached or the reasoning employed in this opinion.
The case of Smith v. Bowman (1907), 32 Utah 33, 38, 88 Pac. 687, 9 L. R. A. (N. S.) 889, cited by appellants, is a case directly in point. In that case, the bond sued on was given to secure the performance of a contract for the construction of a college building, which under the laws of Utah could not be subjected to a mechanic’s lien, and it was in all
One of the express conditions of the bond was to the effect that the contractor should duly and promptly pay and discharge all indebtedness incurred in carrying out said contract. This stipulation was clearly intended, as we have said, for the benefit of persons to whom said contractor might become indebted on account of said contract. As the language of the contract does not have the effect to limit the persons entitled to such benefit to those entitled to liens, it must follow that appellee may maintain an action on said bond. The complaint was in other respects sufficient, and the demurrer was properly overruled.
Finding no error in the record, the judgment is affirmed.
Note. — Reported in 96 N. E. 960. See, also, under (1) 9 Cye. 377; (2) 28 Cyc. 1041; (4) 9 Cye. 582, 584; (5) 5 Cyc. 853. As to the right of a third person to enforce a contract made for his benefit, see 39 Am. St. 531.