*1 So.2d COMPANY OF CASUALTY AMERICAN READING, PENNSYLVANIA

George DEVINE. Div. 43.

Supreme Court of Alabama.

July 25, 1963.

Rehearing Denied Nov. *3 Allen,

London, Yancey, Birming- Clark & ham, appellant. Brewer, Decatur, appellee.

Albert P. complaint contains one count. Plain- tiff alleges August 15, that on F. W. Bruce Company, Construction hereinafter sometimes referred to as the contractor or Bruce, and the City Decatur Board of Education, hereinafter sometimes referred owner, contract; to as the entered into the contract, that on the date said the con- tractor furnished to the owner a labor and materials copy was in writing, a *4 of which is attached complaint A; Exhibit that the contractor principal in said bond and defendant surety; that the bond is conditioned for payment by principal, and subcon- tractors, persons to all supplying him or them with labor and materials pros- for the provided ecution of work for in the contract; that furnished labor and materials said for work under a contract plaintiff; between and contractor contractor abandoned its work under the on, wit, contract 1959; February 10, 13, April 1959,plaintiff that on gave notice by certified mail to defendant principal at its place in Pennsylvania; of business that said notice was in given and was to de- forty-five days fendant more than prior to suit; filing that defendant has failed and plaintiff’s claim; refused to and that abandonment of the contract Bruce oc- year immediately curred within one preced- filing of this ing suit. Plaintiff claims attorney’s reasonable also a fee. Defendant’s demurrer to complaint and overruled defendant pleas filed 14, through later, plea and 15. The court plaintiff’s plea sustained demurrer 4 and COLEMAN, Justice. pleas through 14. The court overruled plaintiff’s 1, 2, 3, 5 pleas demurrer appeal by an from This is 8, 15, through general which and plaintiff, judgment rendered issue and statute of frauds. jury, de- verdict of a in an against action surety fendant bond Apparently on a contractor’s plaintiff joined issue on 16, 1940, required by 50, pleas Title Code which demurrer was § overruled obligation should and begun. part the contractor trial After sup- promptly payment persons heard, plaintiff make all evidence repli- had been filed 3, plying 2, 1, 1, replication him with cations labor and materials In prosecution plaintiff joins pleas. for in a provided the work replica- issue on the In elementary 4, plaintiff contract tions says for construction of an that defend- building estopped school ant is Decatur. to assert invalidity companies;, agencies local insurance de- sustained The court sued on. the bond companies, that defendant was one replications demurrer to fendant’s represented Irby; verdict and the trial continued James. Irby’s charge Atkinson was in bond de- $3,008.37. From plaintiff for judgment for partment ; that dealt Boswell with Atkinson prosecutes this judgment defendant Irby’s department; that Boswell appeal. business, placed through Irby, with defend- Bonding ant and the show that the own- Massachusetts Com- evidence tends to plans pany; prepare that Boswell and employed architect to Marks dissolved er part July, of the their association the latter in the construction for and assist 1958; that Agency, advertised Boswell left the Marks building; that bids were school office, reopened went into for; a bid and a “bid bond” another his. that Bruce filed agency; purported own that Boswell to have been executed continued to- defendant; dealings bidder and have with Atkinson and that Bruce was low others in. Bruce; 1958; Irby Agency was awarded to that Boswell the contract contract, performance wrote bonds for from copies of the Bruce time to time the labor and materials bond Boswell made for Bruce bonds *5 office; jobs that and others on certain delivered to the architect’s other than the were job; delivered to the archi- instant that Boswell had when the bonds were never been a tect, signatures, agent” they these to wit: “licensed bore of defendant and had Bruce, power attorney had of F. who was the contrac- never a from that W. de- Atkinson, tor; fendant; alleged that attor- Boswell had a conversation James defendant; ney agent executing in fact and and of with relative to a Bruce bid bond elementary further him job B. evidence on the in Boswell. school John signature Decatur, of Rex and later tends to show Boswell had a conversa- bond, Rankin, appears bond; later on with Atkinson about tion the same Atkinson, the bond by telephone, not there when was delivered Boswell called that architect; 15, 1958, August on requested authority that and in Atlanta exe- bond; took documents Decatur bid that the call the architect cute the was made- city; approximately thirty days prior Rankin in that to the office of to the bid signed July the bond sued Rankin on as which was that date that Agent”; that the architect sub- made Boswell from “Resident call was his office- papers sequently Agency left the bonds in Montgomery; the Marks office in superintendent of education who Atkinson told Boswell with that that perfectly owner’s executive officer. alright be it would issue the- bond”; that Boswell “executed” bid the- appears Boswell, further that B. It John and wrote the name Atkinson” “James Montgomery, into the bond bond, went busi- and also wrote B. on Bos- “John witness; well,” that Bos- on the bond as agency; in in that in ness his own power attached to the bond a facsimile well December, 1957, January, in Bos- and', attorney Atkinson from defendant to well formed a connection with the Churchill Bruce; that,, delivered the instrument Agency Montgomery; Marks that July after learned that Boswell association, handled the bond Boswell Decatur Bruce was low bidder on the school' prior agency; business of the was; Boswell, job; that, subsequently, who Marks, during the time was with Boswell Atkinson, Montgomery, who. talked with Irby acquainted Boswell A. F. became Atlanta, telephone, and At- was in Atlanta, Company, agency Geor- to write Atkin- kinson authorized Boswell gia; agen- own when Boswell had his son’s name on the labor materials bond cy, represented Irby Montgomery; he founded; Bos- on which this action is Irby large general agency is a and was well wrote name Atkinson’s “go-between intermediary” wit- signed between Boswell his own name as a

'033 ness; signatures Boswell affixed to the bond a fac- ma- the labor and power simile attorney from appear transcript terials bond in the as fol- io Atkinson. lows: WHEREOF, “IN Principal TESTIMONY Surety have and the presents caused signed these duly day 15th sealed on this the

August, 19 58. “Executed in counterparts. seven (7) presence

“In “F. W. BRUCE CONSTRUCTION COMPANY B, “By Boswell F. W. Bruce_(SEAL) “/s/ John /s/ Meigs Rd., Montgomery, "1851—B Mt. “_ Alabama (Address) (Business Address) “Countersigned: Rex “AMERICAN Rankin_ CASUALTY COMPANY

“/s/ Agent “(Resident (Surety) Decatur, Alabama

“Decatur, “Reading, Alabama_ Pennsylvania_ “(Address) (Business Address)

“By /s/ Jas. Atkinson_ “(Affix Corporate Seal)” *6 subsequently delivered the bond agent Boswell not an time, of defendant at that but Montgomery in to the architect’s office and Rankin “had business Irby. affiliations with” agreed the architect to take the bond to purported There is in evidence a telegram signature. Rankin’s Boswell Decatur August 15, 1958, dated Irby from to Bos- placed Bonding the seal of Massachusetts well, which recites follows: Company on the Boswell never bond. had possession a seal defendant. in his of “AFTER A GREAT DEAL OF CON- I SIDERATION HAVE DECIDED Agency, Boswell left the Marks When “ * ** THAT WE MUST DECLINE TO took with him the entire Boswell pany and ^[*] * supplies ” 0f Massachusetts which some Power of At- included the seal Bonding Com- DER ANY CIRCUMSTANCES. THIS DECISION WAS REACHED DO BUSINESS WITH YOU UN- THIS MORNING AND INFLUENC- torney certificates Atkinson on the of James ED BY MANY FACTORS— Casualty Company.” American “W. N. IRBY” writing that he had no Boswell testified evidence, sign purported authorized him Atkinson’s There is in cor- which about, respondence any Irby prior bond testified and that between Boswell name and never, he, Boswell, any time, subsequent 15, August at had affixed 1958. name, agent defendant, of Atkinson’s foregoing the tenden- statement of presence. Atkinson’s bond in cies of the is for an un- evidence sufficient derstanding telephone had a of defendant’s reliance on

Rankin testified that he Boswell, July, It in statute of frauds as its chief defense. conversation June sig- purported 1958; undisputed architect clear and subsequently, 15, Rankin, August on was of Atkinson on the bond sued brought bond to nature Boswell, placed by was 1958, signed Rankin there while Boswell Rankin it. Alabama, rulings, propounded and five Atkinson Montgomery, in objection overruling had Atlanta, Georgia, that Boswell defendant’s to such questions. from authority whatsoever no whereby Bos- or Atkinson either defendant defendant authorized to bind

well was pertains Assignment 11 at least any written instrument. rulings on admission over five evidence objection. rulings defendant’s These Proposition I general way referred to a combined pages record reference to the arranged argument has Defendant may rulings such be Such where found. according to eleven portion its brief assignment not sufficient invite re proposi- propositions law. each Under assignment not state view because does assignments are re- of error tion certain complained concisely Su the error of. example, under For ferred number. Smith, preme Court Rule Anderson v. I, Proposition lists the numbers 302, Ala. So.2d assignments. In as- forty-four these complains rulings signments, defendant Moreover, Assignment 11 con if objec- court, whereby over defendant’s assigning every ruling testimony sidered as as error tion, certain admitted in evidence appears Assign- to defendant which adverse by plaintiff. offered and exhibits through 94, Transcript pages 90 with ref assignments ment is'one to conversations I, erence between Atkinson Proposition fol- recites as listed under Boswell relative execution of the lows : elementary job bid bond school trial erred in ad- “11. court Decatur, Assignment 11 then cannot be sus testimony mitting of the witness John rulings all tained unless embraced alleged with reference to con- Boswell Housing Lane Author are erroneous. him and between At- versations James Elba, ity City So.2d Irby Company A. kinson F. rela- authorities there cited. tive to the execution of bid bonds for page the record recites: elementary *7 On Bruce on the F. school W. Decatur, Alabama, despite job in ob- you “Q Boswell, did call Mr. Mr. jections by (Tr. pp. the defendant. Atlanta, Georgia in Atkinson James 94)” thru permission request of him or au- and thority bid to execute this bond? Transcript 91, page On it is shown that plaintiff asked Boswell if he had con- Yes, “A sir. any representative de- versation with of Irby issuing that object; or with reference fendant to We CLARK: “MR. suggestive, bid call leading, bond for Bruce on the construction be would project objec- also here involved. Defendant’s hearsay information would standpoint question sustained, tion to the where- was from the objectionable upon plaintiff assigned. asked he had Boswell whether grounds other of a conversation “with some individual” too objection came The “COURT: about De- the execution of “this bond.” answer- after the witness It came late. object, fendant did not an- Boswell ed.” swered Atkinson.” “Mr. There James questions several other and answers clearly late objection too Transcript pages came through ref- “with Thus it overruling alleged was not error. erence to between” and conversations rulings em pages appears find at Boswell and Atkinson. least one of We through transcript, rulings Assignment 11 is not erroneous three braced assignment sustaining objection questions to be sustained. and the cannot defendant’s

(Jgg 24, 27, 15, 16, 17, 10, 12, 13, AMERICAN CASUALTY COMPA- Assignments 49, 41, 42, 48, READING, 34, 36, 38, 39, 30, 32, NY OF PENNSYL- VANIA, Proposition fully amply all in- all listed under to 53 are purposes, action assign the court’s tents as if the same had all as error I and testify, duly acknowledged over de- been executed and allowing a witness alleged by objection, concerning regularly an its its elected officers at fendant’s agent principal em- alleged or office. with conversation Irby. The wit- ployee of or of defendant “ALL HEREBY AUTHORITY assignments, tes- ness, a number of SHALL EXPIRE CONFERRED by made to the witness tified to statements AND TERMINATE WITHOUT NO- Atkin- Atkinson, telephone, from over the AT TICE MIDNIGHT OF 8-31-59.” in Atlanta. son’s office objected admitting Defendant the in- prove argues testimony Defendant evidence, agreed but defendant strument Atkinson, by made the statements this was the Power of At- employees Irby, alleged agents or torney purported in effect at the time of the against be- admissible defendant was not execution of this document.” We under- testimony hearsay and be- cause such “this stand document” to be the bond sued Atkinson, shown that it had not been cause power attorney August on. dated person alleged to have made the other and, terms, expired August its statement, agent was an of defendant record, As we understand the scope agency acting within the witness testified that the made statements made the the time he statement. at during period Atkinson were made opinion are of that the court did not We between those two There is of time dates. testimony objection overruling the err power attorney that the no evidence whereby the witness testified Atkinson throughout in effect the entire interval statements. This we hold be- certain made those two dates. between following appear matters cause of transcript. power proof There is no attorney executed officers require filed motion Plaintiff defend- defendant, but defendant admitted that the power powers produce such ant to Certainly, was in effect. if for instrument attorney from defendant to Atkinson as de- made, had been proof of execution mal possession. in its had The court lendant attorney would have power been admis comply the mo- ordered think against defendant. We defend sible power produced a and defendant at- tion was as efficacious admission as such ant’s torney By from defendant Atkinson. *8 proof power of and that admission of instrument, constituted Atkin- attorney not With in evidence was error. son evidence, attorney there power of attorney (s) in- and lawful “its true defendant’s proof was that Atkinson was execute, fact to and deliver for seal bonds agent power execute with real surety, any and all on its behalf as opinion of binding on defendant. We are undertakings, recognizances, bonds and overruling ob that the court did not err indemnity and writ- contracts of by Bos jections testimony, witness thereof, ings obligatory in the nature well, those Atkinson made to the effect that may allowed, required which are of the exercise statements which related to law, statute, rule, permitted by regu- him, wit, to ex power conferred on lation, contract or otherwise. binding defend ecute which were bonds ant. such instru- “and the execution of empow- say Atkinson was presents, do not (s) pursuance We ment these of did, but things allegedly all the he binding upon ered to do shall be the said as by gave days’ say agency was shown tiff surety requir- notice to we do his statements, 16, 50, alleged by his ed other than Title Code evidence § proof made in the of statements areWe somewhat at a loss to understand authority as defendant’s exercise of his argument this following view of the ex- objection now agent over the was admissible cerpt from the record: defendant, namely, by that Atkin- relied on "MR. BREWER: For the sake of the agency had not been otherwise shown. son’s record, registered I will state that a no- testimony may that some It well be required 50, by 16, tice as Title Section persons admissible to show that oth- was not Alabama, 1940, Code given was had er than Atkinson made statements com- Casualty the American Company of plained assignments of in the listed under Pennsylvania Reading, within the stat- Defendant, however, Proposition I. in ar- utory period filing suit and that gument, separated not good has from days more than 45 thereafter suit was argued testimony but has all it bad claim, filed on the instant the notice be- together. relating Some to Atkinson’s ing the claim of in this think, bad, argu- statements we was not case. against ment the whole is not due to be sus- stipulate “MR. CLARK: We that.” tained. Defendant has not shown reversi- Proposition under ble error I. Error is proposition. not shown under this Proposition II Proposition V argues, proposition, Defendant under this was; argues Defendant complaint that the plaintiff’s court erred in sustaining demurrable because it contains no aver- 9, 10, 11, pleas demurrer to and 12. Defend- ment that the pay- contractor has not made insistence is ant’s because the bond ment labor for the and materials sued for. Bonding the seal Massachusetts bears complaint recites that de- Company purports but be executed fendant failed and refused has the- e., company, defendant, different i. plaintiff.” claim the Defendant has not defective on its face the obligee, our ground called to attention de- through obligee, plaintiff, points murrer which out the failure to al- put invalidity on notice the bond. lege that the pay- contractor has not made of our In view conclusion that the bond ment. by virtue of (3) 3, is void subdivision of § 1940, A ground pretermit, of demurrer that Title Code we the- as unnec- complaint forth essary, Proposition consideration of sets no cause of action is to. II. general extent demurrer not author Proposition III ized Title Code 1940. doWe § specific not find a ground properly Defendant insists that the bond is invalid points complained out the defect now ofr because it countersigned a res- and, therefore, opinion are of that error state, ident agent of defendant predicated cannot be overruling the de required by 823, Title Code 1940. Con- § murrer insofar as that claim is concerned. Proposition sideration of pretermitted III is *9 Hollon, Sarber v. 265 Ala. So.2d 91 for the applies same Propo- reason which 229. sition II. Proposition VI Proposition IV complains Defendant argument al- proposition, Under this legedly plaintiff made that Atkinson had insists that the court erred in refusing de discharged by been' Irby ac- requested fendant’s affirmative instructions count the matters things in con- here plaintiff prove because plain- failed to troversy.” that

«37 argument The is not set out in the record. contemporaneously with building the con- appear It does formally not that defendant tract. bond given was to assure or objected argument guarantee the moved pay the contractor would court to jury instruct the the not to consider certain per- debts he would incur argument mistrial, although or to a declare forming obligations his building the under Moreover, the court said: “Overruled.” case, contract. We hold that in such a the the court jury the instructed that “there for building consideration the contract no evidence as to the the support what reason for sufficient to the bond. employment dissolution of the At- of Mr. contract, In building agreed it was was,” kinson and that “The statements that: “The contractor shall furnish all the attorneys simply inferences, are their perform materials and all work but that is not evidence in the case.” shown Drawings and described in Specifications The labor and respect counsel, With to remarks of materials bond was an guar- assurance or court; much discretion is allowed the trial anty, perform that the contractor would his Phillips Ashworth, 237, 241, v. 220 Ala. obligation pay laborers and materialmen. 519; appellate So. and the court will obligation The contractor’s arose out interfere where this discretion is not abused. building of the contract and the bond as- Ry. Jarvis, Southern Co. v. 266 Ala. sured or guaranteed that the contractor

446, 97 So.2d 549. perform would obligation. us, On the record now before we Where the contracts are made con opinion are of that defendant has not shown temporaneously and guaranty contract proposition. reversible error this under We expressly incorporates refers to and not, however, to be hold understood as guaranteed, contract then the considera ing plaintiff right argue have did a tion for contract guaranteed is suffi that Atkinson had been fired on account support cient to guaranty. contract of alleged relating actions to the bond Allen, Levy supra. v. trial, sued on. In the event another possibility improper argument doubt will deny Defendant does not that the build- be avoided. less supported ing good contract valuable consideration. recites

Proposition VII building contract shall be deemed a part of the bond. We hold that there was argues Defendant that it en prove no failure to consideration for charge titled to the affirmative because argument bond. Defendant’s under prove a failed to consideration proposition is without merit. alleged promise defendant’s to answer Bruce’s debt. Propositions VIII, IX, Xand “It is well settled that if a contract pretermit prop- We consideration these guaranty contemporaneously is made Prop- ositions for the reason stated under original contract osition II. guarantees, the consideration for the original support sufficient contract is Proposition XI guaranty. contract Dilworth v. principal is that Defendant’s insistence Co., Holmes Ala. & Vehicle Furn. the court affirmative refusing erred Coffin, Merritt So. v. ” * * * requested charge duly which defendant Levy So. “ ** writing. argues that it Defendant Allen, 257 Ala. 58 So.2d 617. general affirmative was entitled *10 requested here charge

The labor and materials bond as on the basis that it was on, all, clearly if at instrument purported sued executed was executed shown

638 shadowy, often not takings is often and by the intended the nature upon ofwas sued writers, Saint by judges and text by the observed to be- subscribed frauds1 statute of Manufacturing Com therewith, or & Wilson v. Wheeler charged

party sought 362, 371, 539. We pany, Ala. law So. thereunto him person other some advised, however, has that this court fact not in writing, when fully authorized Boswell, that contract of the distinction a made that openly admitted it was John frauds guaranty is within the statute of Atkin the name actually signed who James On suretyship is not. while a contract of Casu American son, attorney-in-fact as of hand, question court has said: the other this instrument Company, to the alty authority of the written had has never “ * * Appellant import- attaches the said Atkinson or the defendant either appellee guaran- the fact that ance do so.” place payment ‘at the time and and teed undertaking the that contends Plaintiff agreement pro- in said in the manner of the statute not within is of vided,’ primary referring to the con- therefore, required by and, sub- frauds, language But is without tract. Title Code (3) division § contention, present significance in the party subscribed the writing and be in for, upon binding contract whether the therewith, per- or some charged to be surety- appellee guaranty was one of or lawfully authorized by him thereunto son ship, appellee event became either contends, writing; or, plaintiff as we under- performance of for Davidson’s bound evidence, that, argument his stand place undertaking ‘at the time and bond sued on was find jury could agreement in the manner in said and promise required writing to be anot only question being provided’; required by the statute. subscribed responsibility absolute whether conditional. in brief follows: contends Plaintiff suretyship guar- direct, “Contracts primary itself bond is a “The anty have much in common—in both part undertaking on original is to undertaking answer for the Company. Casualty of American default, miscarriage debt, of another. persons obligee class of ”*** Med. W. Watkins Co. v. claiming rights as labor and material- J. al., 414, 418, 419, Lovelady, et 186 Ala. remedy pursue against their men can 52, 54. 65 So. both, it is no condition either or precedent ac- to the maintenance anof 547, 86 Biggs, In P.2d Craswell v. Or. surety against tion so-called 71, the court that a subcontractor’s held they against the must first redress seek performance statute bond was within the principal. contractor or the Ore- The court observed that frauds. “Actually, the distinction which is gon comprehensive is statute more applying drawn Court in our fact of other drastic than of the statutes most situation in each states; case is whether the under the but court said promise original If or collateral. Oregon agreement Code an to answer promise suretyship original, debt, is miscarriage another default or relationship promise exists is and if the must be in and “This statute collateral, promise then especially applicable in this one facts ”* guaranty. case.” The difference suretyship Fidelity Deposit between Co. of Horning In & guaranty known, Davenport is well Maryland, App., & Har Ohio 35 N.E.2d Roberson, ris Undertaking Appeals Co. v. Court of Ohio held although So. from given the dis certain chattels release tinction attachment, promise between the two classes under- the surety

03« and, clearly change and conditional cannot collateral it into was the former. ” ** * or Myatt Moore, note thereof v. there is no memorandum Scott as & party be by the writing signed Ala. etc., clearly charged, within the it comes Boykin See also: & McRae v. Dohlonde & is statute and unenforceable. Co., 577; King v. & Borden Mill Co., 455; Day Lumber 214 Ala. 107 So. opinion that the circum We of Adcock, Ala.App. 471, v. 66 So. 911. promise suretyship, a is one of stance promise The terms of the sued here on are is guaranty, from one distinguished not conflict. Plaintiff states in brief: a sufficient reason to take without the not promise statute of frauds a to answer for “ Appellee The submits that debt the of another. only under the evidence it is not a rea- sonable inference that Mr. Devine re- question promise whether a lied faith the bond and ex- original or is for was collateral one of fact defendant, tended his credit to this but jury where evidence as the the the terms only logical it is the inference promise conflicting is or of the where the which can be drawn from this testi- ” * * * by parties language ambiguous. used the is mony. hand, the the other since construction On agreement general question plaintiff parted is in a If with material or law, the bond, where facts are admitted or the labor on the faith of the “it makes is not in conflict and they evidence the terms no difference to whom charged, were unambiguous, promise are clear and it rights parties the the the must be deter proper the writing.” is court to decide as a the by (Emphasis mat mined Sup promise Myatt whether the is original plied.) Moore, ter law v. supra. Scott & by or collateral. Statute the bond plaintiff fact that was treated Am.Jur. Frauds, 72; 20 A.L.R. 246. aas direct instead of a § collateral under change taking cannot it into a direct under This court has said: taking. “ * ** many cases, question There are The ultimate for decision is promise one, a where verbal whether the labor and by materials its parties terms, promise when acts of the are ad- is a to answer for the debt explain; equivocal mitted and if of another and within the statute. If the expressions promise used in a un- original were written undertaking by is an de- open dertaking, then it pay debt, would be fendant to if its own the lan- explanation. effect, was, in This guage writing support of the will the infer- Simpson reasoning Bailey, J., promise ence that is such an under- Penton, Cromp. taking, & Mees. but then the court err in sub- did not here, question under the of our mitting jury force own deci- whether sions, promise we are bound to construe was or not within the original as an undertaking; judgment statute and the due there ambiguity, is no being reversed refusal of the affirmative case, is, only requested charge by inquiry has been On the defendant. upon by appellees? hand, acted they language promise If if the of the parted it, goods unambiguous, faith of and sets out a collateral it makes no they promise debt, then, difference whom the contractor’s charged, were rights par- as the proved of the because the has not by ties must be promise writing; by determined subscribed defendant and the fact that it person was treated those some other there- to whom it lawfully was addressed as a writing, col- unto authorized lateral, instead undertaking, direct refusing court erred in the affirmative

640 charged knowledge requested by with charge being defendant the of the law bond, required which the the judgment must be reversed. bond must be applied parties construed and as if the pertinent part: recites The bond making complied it had with Uni the law. Electric versal Const. Co. of Alabama v. given pursuant bond is “(e) This Robbins, 105, 239 Ala. 194 194. 39, So. General Laws the Act No. terms of its it Alabama, February 8, bond shows on face that was executed approved compliance with statute pro- the and the court to further 1935, 'An Act entitled provisions is into it State authorized read the on vide for bond of Contractors statute, give the “and it public the form and works and suits and other contemplated, regardless effect the statute thereon’.” 109, its Ala. contents.” 194 So. 198. 239 70, Acts, 39, page is codified Act No. is the bond. In short the statute written into and, 16, 50, 1940, as here Title Code as § pertinent, recites: opinion are of the that if stat We * * * “Any person entering ute is written into the bond to the con into * * * * * * surety, any statute also writ with tractor the is a contract

with nished have their not been after ments tor thereon; provided, any person within surety municipal corporation * * thereof institute to recover of the contractor and such surety suit shall be ings to execute * * struction * * * for such * * * * * ^[*] person the * * * or contractor * * * to all labor, materials forty-five days action * * * * * an action * obligation that such contrac- made, * * * * rights ^[*] * * * * * instituted ** shall * labor, the work payment name persons supplying shall be *. * * shall written notice * * for the * * promptly judgment rendered upon another bond In the event materials however, fails to be any public build- * shall be entitled * required for which has * * * authorized to * * * * * * * and to * * * said bond public work adjudicated subdivision ** ** make has fur- * * *; surety, until * pay- then con- * * * him no * * * bond promise be such that ten 42, 44. none can be established standing under a if ican on the bond. Magic City Dohlonde & suppliers 356, court 50, er balance from the third In In contractor’s oral, this court into the shown similar and General Acts another Surety determining given said, person not statute, under against binding.” Boykin “Kroell can recover Paint & bond labor Co., Co., case, rule who said, bond many respects third General Acts liability General in this state is of in action supplies and materials who “ which had Ala. * Varnish Ala. person against the * * contractor, clearly if the transaction 577, Acts 40, 43, obligee collateral, page Co. if 581. & McRae surety articles, contractor’s been responsible 1927, page liability § 1927, page no surety 16, surety.” 152 So. Amer great- given Title than long and, rely this the v. claim, principal he in the bond.” can from to the amount of said addition Royal Indemnity Vann Young & attorney’s Co. v. a reasonable fee Supply Co., So. act, With said reference compulsion court has said that there was no appears holdings surety but Thus such a execute pur- promise surety so, of this court have been knowing did

since the surety statutory pose on a for labor given the bond was

(Ml *13 n materials, contractor, furnished to the For' refusing error in the affirmative regarded promise pay is to be charge requested a to for writing by in defendant, person, articles furnished to a third the judgment the is reversed and the cause is contractor, and that the contractor’s lia- remanded. bility the for articles furnished to him is Reversed and remanded. liability surety the limit of the of the necessary surety’s a element the liability. to LIVINGSTON, J.,C. and LAWSON GOODWYN, JJ., concur. case,

In the contractor, instant the under the statute and prom under his own

ise, responsible plaintiff is to price for the ON REHEARING of the labor and material here sued for. obligation by written into COLEMAN, the Justice. the statute is “that such contractor application rehearing, On plaintiff promptly shall payments.” Clearly, make 'argues that defendant executed the labor is a party, this case where the the third and materials bond here sued on per- contractor, responsible is person who obligation formance of defendant’s to do supplies promise the articles and the of the so, obligation by defendant incurred surety is collateral and within the statute executing bid the bond. of frauds under Boykin the rule stated in Co., supra. argues that, & McRae v. by Dohlonde & Plaintiff bond, the bid agreed that, contractor and defendant the if plaintiff prove Because failed to a accepted by contractor’s bid was owner, the promise and subscribed as re the contractor and defendant would do one quired by statute, the the defendant was things, namely: (1) of two execute and de- charge to entitled the affirmative and its re together perform- liver a contract with a fusal was reversible error. bond; ance bond and labor and materials or, (2) to refuse execute the contract and above, As noted court sustained de- pay per to the owner five cent of the plaintiff’s replica- fendant’s demurrer to amount of the contractor’s bid. 3,2, plaintiff alleged tions wherein estopped that defendant was to assert says Plaintiff that defendant chose that, principle statute of frauds on the if and, executing first alternative the labor knowledge defendant had bond, merely carrying and materials similarly others relying situated were on obligation in- primary out defendant’s own purported detriment, bond to then their that, bond, so executing curred the bid estopped silent it- remaining labor and became the materials bond deny self validity of the bond. primary obligation not a of defendant and debt, default, promise to answer Plaintiff, brief, ruling asks that the on miscarriage Plaintiff of the contractor. reviewed, replications demurrer to these says that, result, and mate- the labor reversed, in the event is judgment so undertaking rials bond was a collateral that, trial, parties on another the court and orig- by defendant, became defendant’s but. point. will be advised this undertaking its own debt inal obligation. its discharge own any cross-assign We do not find record, authority ment error written in as re No cited in brief filed re- by Supreme 3, and, quired plaintiff’s argument hearing support Rule nor Court question circumstance, case not be do we understand cited previously supports argu- fore us for decision. Waters filed v. American briefs Pa., Reading, argument Gas Co. 261 Ala. 73 ment. We think that the is fal- Ruck, correctly in that it fails state So.2d Ruck 89 lacious obligation of defendant bid bond. So.2d under the arguendo defend Assuming bond, it obligated ant, executing bid materials labor and execute the

self obligation, if opinion that we are of obligation remained any, of defendant promise to merely answer another execute *14 miscarriage default, con debt, wit,

tractor, the labor and materials promise within the such

which was frauds, as we undertook to show statute of deliverance. original

So, of the labor and mate- if execution regarded, arguendo, should be bond

rials performance obligation of defendant’s bond, the labor and materials the bid

under promise remains to answer still must be under statute frauds.

Opinion extended.

Application overruled.

LIVINGSTON, J.,C. and GOODWYN HARWOOD, JJ., concur. So.2d LIFE INSURANCE

UNITED SECURITY COMPANY

M. MOORE C. Div.

Supreme Court of Alabama. 14, 1963.

Nov.