School District ex rel. Fredericktown Brick Co. v. Beggs

REYNOLDS, P. J. (after stating tbe facts).— Tbe paper filed as an abstract is attacked by counsel for respondent as not being sufficient in any respect; among others, that it fails to show tbe filing of record of a bill of exceptions. An examination of this so-called abstract, while showing many defects not necessary to be noted or commented on here, although not very clearly set out, does show that the bill of exceptions was duly filed in vacation by tbe clerk and within [183] the time allowed. The bill of exceptions is referred to by written interlineations in the printed abstract, by pages, but the bill of exceptions is not before ns. What are said to be entries of records showing overruling of motions, contains the recital that defendants excepted to the ruling. But exceptions cannot be saved by record entries. It is impossible to determine by the abstract furnished us what is in the bill of exceptions and so saved.. Thus it is set out that a motion was filed to strike out certain portions of the answer, setting up alterations in the building which it is claimed absolved defendants from liability on the bond, and the motion is set out in full. Following that is this entry in the abstract, written by pen and ink: “Said motion to strike out is set forth on pages 2, 3, 4, 5 and 6 in bill of exceptions.” Then follows this, printed: “That on the 30th day of September, 1908, the same being the third day of the September term, 1908, the court took up said motion to strike out part of the answer of the said defendants aforesaid, and having seen, heard aud considered the same, did then and there sustain the said motion. To the ruling of the court in sustaining said motion to strike out part of said answer, the defendants then and. there and at the time objected and excepted and saved their exceptions.” Then follows, by pen and ink, this: “The rulings and objections and ■exceptions are set out in bill of exceptions.” And so it runs through this abstract. It comprises forty pages and these pen and ink interlineations of matter which should appear in an abstract are on sixteen of them, sometimes two or more on a page. By these alone is an attempt made to inform us of what is exception and what of record. Respondent challenges the abstract as insufficient and asks for an affirmance or dismissal of the appeal on that ground. We will not sustain that motion, but even without it, examining the so-called abstract, we are left in the dark to say what is and is not in the bill of exceptions. Rule 15 of our court [184] clearly and unmistakably calls for a printed abstract in fair type. While an occasional interlineation or correction by pen or pencil will not be cause for disregarding an abstract, we cannot tolerate such radical departure from the rules established for the orderly conduct of cases. As to the bill of exceptions, this entry, however, does appear: That the “court granted to the defendants until the 1st day of January, 1909, in which to file their bill of exceptions and in vacation of this court, and that execution be stayed pending the appeal.” Then appears this: “That afterwards, and on the 22d of Eecember, 1908, the defendants filed their bill of exceptions, with the clerk and in vacation of the circuit court of Madison county, Missouri, and the following entry of record was made, to-wit:” Then follows the entry of filing. We have set out the finding of facts made by the court. It sustains all the material allegations in the petition. The sole question which we consider necessary to consider at any length is the question of the sufficiency of the petition to sustain the judgment. Recurring to the objections made to the petition, it is urged that the bond there set up and pleaded does not include this plaintiff, he not being named in it, not being within its terms, but a stranger to it; that the bond is limited by its terms and scope to those who have a right to mechanics’ liens, and as there can be no mechanics’ liens against a public school building, it does not protect that class of claimants, of whom plaintiff is one; that no one but the school district itself is under protection of the bond; that “the clear and unequivocal wording of the bond in question is that it was made for the benefit of those and only those who might, under the statute, become entitled to liens.” Section 6761, Revised Statutes 1899, provides: “All . . . school districts making contracts for public work of any kind to be done for such [185] . . . school district, shall require every contractor to execute a bond with good and sufficient securities, and such bond among other conditions shall be conditioned for the payment for all material used in such work, and all labor performed on such work, whether by subcontract or otherwise.” We have set out the conditions of the bond as pleaded in the petition. It is not necessary to repeat them here. Over and beyond the obligation to pay for all material, etc., furnished Beggs in the construction of the building, is the distinct clause that the bond “is made for the use and benefit of all persons who may become entitled to liens under said contract, or to whom said Beggs might become indebted and that it might be sued upon by such persons as if executed to them in proper person” It is true that this clause is not in the language of section 6761, but while rather awkwardly expressed, it effectually covers the idea of that section. Discarding the statute, it is a good common-law bond, and very clearly sets out those who are to be within its protection. Nor is the expression in it, that those who may be entitled to mechanics’ liens are within it, to be taken literally, for no one can be entitled to a mechanics’ lien against a public building. Hence this clause might be read as if in these words: “Those who but for the provisions of the law exempting public buildings from mechanics’ liens are entitled to enforce a lien.” But this bond, as pleaded, does not end with this provision as to protection of mechanics’ lien claimants. It protects these as well as those “to whom the said J. E. Beggs might become indebted for labor performed on said building or materials furnished and which entered into its construction.” It is made for the use and benefit of “all persons who may become entitled to liens” — that is one class; “or, to whom said Beggs may become indebted,” and that is another class; then, covering both, it provides, “it might be sued upon by such persons, as if executed to [186] them in proper person.” Herein this bond differs radically from tbe bond in suit in State ex rel. v. Loomis, 88 Mo. App. 500, and instead of falling under tbe condemnation of that decision, this case is directly within tbe general doctrine there announced, namely, contracts for the benefit of third parties may be enforced by them, even if not named in them, provided it appears that the third parties were within the minds of the parties to the bond as parties within its protection. Judge Goode (1. c. 504) expressly says, referring to the bond there before the court, “The language does not embrace all who might perform labor or furnish material, but only such as do one of those things and are entitled to a lien therefor. In that respect the contract differs from those construed in Crone v. Stinde, 156 Mo. 262, 55 S. W. 863; City ex rel. v. Von Phul, 133 Mo. 561, 34 S. W. 843; Devers v. Howard, 144 Mo. 671, 46 S. W. 625; School District ex rel. v. Livers, 147 Mo. 580, 49 S. W. 507; Luthy v. Woods, 6 Mo. App. 67, in which cases the contracts were so worded as to protect laborers and materialmen without the qualification that they should be lienors.” The bond before us in this case does provide both for lienors and for all others who do work and furnish material. Hence it is within the rule laid down in the Loomis case and distinctly within the cases there cited. As is said in the Luthy case, it is not necessary to resort to any supposed equity even to entitle the mate-rialmen to sue. Their right arises from the very terms of the bond; the bond and its condition are pleaded; the plaintiff is within not alone its spirit, but its very terms. _ If necessary to go that far, we would be inclined to hold it good even under the statute. We conclude, therefore, that the petition here does state a good cause of action and the finding and judgment of the trial court are fully sustained by it. Judg- ' ment affirmed. All ■ concur.