214 Wis. 603 | Wis. | 1934
The subcontractor, in its contract with the principal contractor, agreed “to furnish and pay for all costs or rentals of equipment . . . required for the construction . . .’’of the work to be performed by the subcontractor, and also agreed to “furnish a surety company bond guarantying the full, complete, and faithful performance of this agreement. . . .” By those provisions the subcontractor expressly obligated itself (1) to “pay for all rentals of equipment required for the construction of the subcontract work,” and (2) to furnish a surety bond guarantying “the full, complete performance of this agreement.” Manifestly the latter provision clearly required the bond to guaranty full performance of the subcontractor’s contract to pay all rentals for equipment, as well as full performance by the subcontractor in all other respects required by its subcontract.
In compliance with that contract the subcontractor executed and furnished the bond in suit, with the Maryland
“If the principal shall faithfully perform the foregoing contract with Lakeside Bridge & Steel Company, do all the work, furnish and perform all the materials and services and make all the payments for materials, equipment, facilities, labor and services, all as in said contract provided, and indemnify and save harmless Lakeside Bridge & Steel Company from all loss, cost, disbursement, damage and expense, including attorney’s fees, resulting from any failure of the principal to fully and faithfully perform said contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect.”
There is nothing in that bond which excludes from its guaranty of performance of the subcontract by the subcontractor the requirement therein to “pay for all rentals of equipment.” Such rentals are clearly within the words in condition in the bond, “if the principal shall faithfully perform the foregoing contract . . . and make all the payments for materials, equipment,” etc. There is no ambiguity whatsoever in that respect. That being true, plaintiff as a third party is entitled to the benefit of those provisions in the subcontractor’s contract and the bond. Concrete Steel Co. v. Illinois Surety Co. 163 Wis. 41, 157 N. W. 543; United States Gypsum Co. v. Gleason, 135 Wis. 539, 116 N. W. 238; R. Connor Co. v. Ætna Indemnity Co. 136 Wis. 13, 115 N. W. 811; Warren Webster & Co. v. Beaumont Hotel Co. 151 Wis. 1, 138 N. W. 102; Builders L. & S. Co. v. Chicago, B. & S. Co. 167 Wis. 167, 166 N. W. 320; Northwestern B. & I. Co. v. Maryland Casualty Co. 171 Wis. 526, 177 N. W. 31; Building Contractors’ L. M. L. Ins. Co. v. Southern Surety Co. 185 Wis. 83, 200 N. W. 770; A. Kieckhefer E. Co. v. Massachusetts B. & I. Co., ante, p. 133, 252 N. W. 591; Weary & Alford Co. v. Massachusetts B. & I. Co., ante, p. 200, 252 N. W. 600.
As there is no uncertainty or ambiguity in respect to the meaning of the foregoing express and unequivocal provisions of the subcontract and the bond, when construed together, there is no occasion for resorting to surrounding circumstances to ascertain the intention of the parties'. Likewise, the fact that neither the principal contractor, nor the money to be paid to it for the construction of public work,
On the other hand, there are, in the bond in suit, no such words of limitation as were in the bond which was under consideration in Gumz v. United States F. & G. Co. 209 Wis. 408, 415, 245 N. W. 82, and by virtue of which the purpose of the indemnity was expressly restricted to solely the requirement that when the work was completed the project should be free from liens. As we recently said in respect to the decision in the Gums Case:
“It is only where the particular language involved requires the court to hold .that there is a modification of the promise to pay that the doctrine of third party beneficiary contracts does not apply.” A. Kieckhefer E. Co. v. Massachusetts B. & I. Co., supra.
It follows that the portion of-the judgment appealed from must be reversed; and that in lieu thereof the judgment shall
By the Court. — The provision of the judgment appealed from is reversed, with directions that in lieu thereof the judgment entered shall provide that plaintiff shall recover from the K. W. Construction Company and the Maryland Casualty Company the sum of $338.25 with interest and costs.