75 P.2d 412 | Okla. | 1937
This is an appeal from a judgment of the district court of Custer county. The question involved is the liability of the surety on a statutory bond. The essential facts will be briefly stated. On October 5, 1931, the Green Construction Company entered into a contract with the board of county commissioners of Custer county whereby it contracted to build and construct a bridge over and across the South Canadian river. The contract involved more than $100, and therefore the contractor was required to furnish a bond pursuant to the provisions of section 10983, O. S. 1931. The United States Fidelity Guaranty Company, as surety, executed said bond. The defendant in error operated a garage and machine shop at Thomas, Okla., near the point where the bridge in question was to be erected, and the said shop performed certain work and labor and furnished certain material in the overhauling and repairing of three trucks belonging to the Green Construction Company and used by it in connection with the construction of said bridge. Payment for the work and labor so performed and the materials and supplies so furnished and used was not made, and thereupon suit was brought therefor by the defendant in error against the Green Construction Company and the United States Fidelity Guaranty Company, the surety on its statutory bond. The Green Construction Company filed an answer, but made no defense to the action and permitted judgment to go against it. The United States Fidelity Guaranty Company appeared and contested the action on the ground that the work and labor performed and the materials and supplies furnished and used were not performed or furnished or used in the project for which it had executed the bond. The cause was tried to the court without the intervention of a jury and resulted in a judgment in favor of the defendant in error and against the plaintiff in error as well as the Green Construction Company. The United States Fidelity Guaranty Company alone appeals.
Six specifications of error are assigned, but these present only a single question for determination, that is, whether the labor performed and the material furnished in the repair and overhauling of the trucks of the construction company are to be classed as labor performed and material furnished in the construction of the bridge, and therefore within the terms of the bond executed by plaintiff in error. If the question is answered in the affirmative, the judgment of the trial court should be affirmed. Otherwise, it should be reversed.
The statute (section 10983, O. S. 1931) requires that the bond be "in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvement." The liability of the principal and surety under a bond given pursuant to the aforesaid statute is not confined to labor and materials for which a lien ordinarily could be claimed. Federal Surety Co. v. St. Louis Structural Steel Co.,
"Materials used in the construction of a public work, whether furnished under the contract directly to the contractor or to a subcontractor * * * must be deemed within the obligation of the surety company." *570
Such liability includes all materials used in the work and all labor performed on such work whether by a contractor or other. Amerman v. State,
"The statute contemplates manual labor, not mechanical force, and material as distinguished from equipment."
The defendant in error cites a number of decisions from the federal courts and from other jurisdictions in support of his contention that incidental and minor repairs to the equipment and machinery are within the terms and spirit of a bond such as we have here. He also cites several prior decisions of this court, to wit, Eagle Oil Co. v. Altman,
Reversed, with directions.
OSBORN, C. J., and RILEY, PHELPS, GIBSON, and DAVISON, JJ., concur.