55 S.W.2d 367 | Ky. Ct. App. | 1932
Reversing.
The Pittsburgh Foundation Company entered into a contract with the commissioners of sewerage of the city of Louisville to construct a sewer. The Union Indemnity Company and two other surety companies became bound as sureties for the contractor "to pay for all labor performed or furnished, and for all materials used in the carrying out of said contract." The contractor purchased a boiler from the Pennsylvania Boiler Works for which it agreed to pay $2,016.66. The purchase was made shortly after the bond was given. The contractor made four payments on the purchase price of the property, amounting to $1,344.42, and then defaulted. The boiler company sued the surety companies for the balance due on the boiler and recovered a judgment. The surety companies have prosecuted an appeal. The theory upon which the judgment of the circuit court was rendered was that the boiler was "material used in the carrying out" of the contract. The surety companies insist that the terms of the obligation did not include the purchase price of a boiler, although it was an instrumentality utilized by the contractor in carrying out the contract. The contract is to be construed reasonably to effectuate the intention of the parties as manifested by the language employed to express the terms and to define the extent of the obligation. Standard Oil Co. v. National Surety Co.,
In Avery Sons v. Woodruff Cahill,
The claim here is not for parts of a machine worn out and replaced, or for depreciation resulting from use in carrying out the contract, but for a boiler that was sold to the contractor to complete the equipment of his plant, and which could be removed by him and used again and again on many such contracts. It was *476
not the type of article furnished that is contemplated by the agreement to pay for materials used in carrying out the contract. In Steele Lebby v. Flynn-Sullivan Co.,
The judgment is reversed for proceedings not inconsistent with the opinion.