Metz v. Warrick

*510 COX, P. J. Action upon contractor’s bond. Jury waived and trial by court. Judgment for plaintiff against Warrick, principal in the bond, and judgment in favor of Seifert, Fields and Sigler, the sureties on the bond. From the judgment in favor of these sureties, the plaintiff appealed. Mr. Warrick, the principal in the bond, had built an addition to a schoolhouse in Consolidated School District No. 1 in Butler County, Missouri, and made some repairs on the main building. He had purchased material from plaintiff to use in doing the work for which *511 plaintiff had not been paid and this suit was brought upon the bond given by Warrick, the supposed contractor, to the school district. The plaintiff seeks to recover against the sureties on the bond upon the theory that the bond is a statutory bond given under sections 1040 and 1041, Revised Statutes 1919, which makes it -the duty of a school board when letting a contract for work on a school house to require the contractor to furnish a bond conditioned that he will, among other things, pay for all material which he may use in performing the work under his contract. The defense of the sureties is based on the ground that there was no contract entered into between War-rick and the School District and for that reason the bond, if attempted to be given under the statute, was void because there was no contract between the alleged contractor and the School District to support the bond and it was, therefore, without consideration. They further contend that the bond they executed was not a statutory bond and does not bind the sureties to pay for material sold to the alleged contractor to be used in the building. In the view we take of this case, it will not be necessary to set out the terms of the bond. The bond, however, does not in terms follow the language of the statute nor does it make any mention of materialmen. We are of the opinion, however, that under the recent holding of the Supreme Court in Fogarty v. Davis, 264 S. W. 879, 881, that if the contract between Warrick and the School District had been valid so the bond would have had a consideration to support it, the statute could be read into the bond and by doing so, the materialmen could recover on it. The statute, section 2164, Revised Satutes 1919, requires all contracts with School Districts to be in writing and hence a school district cannot be held liable on quantum meruit or any sort of implied contract. [State ex rel. v. Dierkes, 214 Mo. 578, 589, 113 S. W. 1077; Anderson v. Ripley County, 181 Mo. 46, 80 S. W. 263; Per *512 kins v. Independent School District of Ridgeway, 99 Mo. App. 483, 74 S. W. 122; Montague Compressed Air Co. v. Fulton, 166 Mo. App. 11, 30, 148 S. W. 422; Schueler v. City of Kirkwood, 191 Mo. App. 575; 177 S. W. 760.] A contract with a school district can only be made in writing as provided in the statute and anything’ short of that is not a contract. The only thing’ done in this case toward the execution of a contract in writing with the school district was the submission of a bid on the work by Mr. Warrick. That bid was in writing and is as follows : “Will do said work on old building, put up one new room. Furnish all material, labor, for Eleven Hundred and Fifty-Dollars ($1150). H. Warrick.” Nothing was entered on the record of the school district and there is no writing of any kind to show that the bid of Mr. Warrick was accepted by the school district. It might well be doubted whether the bid of Warrick, standing alone, describes the building to be built and the work to be done with sufficient definiteness to make a binding contract had it been properly accepted by the school board. But, waiving that question, we are sure under the authorities above cited that with no writing at all to show that the school board ever employed Mr. Warrick to do anything there was no contract between them that the law can recognize, no matter what may have been said by members of the school board to Mr. Warrick in relation to the matter. Mr. Warrick evidently understood that he was employed by the school board to do the work for the district but he and every other person dealing with a school board must be held to know that he cannot make a contract with a school district except by complying with the statute and putting the contract in writing as the statute provides must be done. When he takes any other course, he does so at his own risk. In this case he was fortunate enough to secure his pay for the work so he cannot complain. The sureties on his bond, however, are not estopped to assert that there was no contract between Warrick and the school district. The *513 bond which they signed was given to guarantee the performance of a contract between Warrick and the school district and since there was no snch contract, there was no consideration for the bond. A want of consideration may be shown to avoid any contract when there is .no question of an innocent holder or purchaser involved. The bond in this case was given to the school district to guarantee the performance of a contract by Mr. Warrick, but when it developed that there was no contract between Warrick and the school district, then, in the very nature of things, the sureties on the bond could not be bound to guarantee the performance of a contract that did not exist. The supposed contract between Warrick and the school district was void ab initio and not merely voidable, and since it had no validity, the bond given to secure its performance had no validity. For that reason the plaintiff had no remedy against the sureties on this bond and as to them, the judgment was for the right party. Judgment affirmed. Bradley, J., concurs; Bailey, J., not sitting.