Clatsop County v. Feldschau

McBRIDE, J. 1-3. The first item which the court found was due plaintiff was for horse feed furnished, and amounted to $2,105.71. This was a proper charge and was properly allowed. It was also necessary that the men should be fed, and the charge for this was properly allowed. We are of the opinion that tobacco, cigars and cigarettes furnished the men cannot be deemed supplies or provisions necessary to the prosecution of the work, and this item, amounting to $126.17, is disallowed. As knives, forks, and dishes are articles not necessarily consumed or destroyed in the prosecution of the work, the charge for these was properly disallowed. We come now to the principal question raised in the appellant’s brief. The complaint alleged substantially that the contract was made between Feldschau and the county, and the bond given was to secure the faithful performance of the contract by Feldschau. It further averred .that in fact Feldschau and Erickson were partners and that the contract and bond were executed for the use and benefit of both of them. It also stated that at the request of Feldsschau and Erickson the relator furnished to Feldschau the feed and provisions mentioned in the complaint, and that they both agreed to pay for them. [684] It is reiterated that the goods were sold “to Feldschau.” Upon this state of the pleadings the evidence admitted tended to show and, not being contradicted, did show, that the original contract was made with Feldschau alone, and that, after the work was begun and part of the supplies were furnished, Erickson, who according to the testimony was probably an indemnitor as to the bond furnished, came into the management either as an indemnitor or as a partner in completing the contract, and ordered some of the supplies so furnished, but’ they were not charged to him or to any partnership account, but to Feldschau alone. It is ably and plausibly contended that the fact that Feldschau had a partner at the time the contract and bond were executed, who was to participate in the liabilities and share in the profits, rendered the bond of no effect as to the relator. School District v. Smith, 63 Or. 586 (127 Pac. 797, 43 L. R. A. (N. S.) 65), is cited among other cases as authority for this contention. The allegations of the complaint in the case at bar fall far short of disclosing any enforceable contract between Erickson and the county, or the defendant surety company and Erickson. So far as the county was concerned, it was dealing with Feldschau alone. The liability was his alone. If he had a dozen undisclosed partners, that was not a matter of any importance to the county. He agreed to do the work and to see that employees and materialmen should be paid; and the defendant company guaranteed that he should do the work and pay the employees and materialmen. Since the bond and contract were set up in the complaint, the allegation that they were executed for the use and benefit of Feldschau and Erickson was a mere legal conclusion which those [685] instruments showed to be ill founded and which could have been stricken out on motion. In the case cited, Smith had a contract with the plaintiff school district to build a sehoolhouse. The other defendants were voluntary sureties upon his statutory bond, which was substantially in the same form as the bond here in suit. Smith had a partner at the time the contract was entered into, one Eobinson, who performed the woodwork on the building and ordered the materials for which the action was brought, in his own name, and they were charged to him personally. Upon this state of facts the plaintiff attempted to hold the bondsmen liable. It was held that this could not be done. Here, the goods were not sold to Erickson or charged to him or to any partnership. The complaint alleges that they were furnished to Feldschau and charged to Feldschau. A case parallel to School District v. Smith, 63 Or. 586 (127 Pac. 797, 43 L. R. A. (N. S.) 65), would be one in which Erickson had purchased the goods in his own name and had them charged to himself, and the relator had then attempted to enforce the bond given on behalf of Feldschau. The evidence indicated that Erickson, if he was a partner, came into the firm after the contract was entered into and while the work was in progress, thus bringing this case within the exception noted in School District v. Smith, 63 Or. 586 (127 Pac. 797, 43 L. R. A. (N. S.) 65). The limitation therein expressed, as to those cases where the partnership is formed after the bond is executed, while broad enough as applied to that case is too narrow to be laid down as universal, as shown by the cases cited in the note to Section 137, Brandt on Suretyship and Guaranty (3 ed.). In the case at bar, while it is [686] alleged that the bond and contract were executed for the benefit of the partnership, it is also alleged that the goods were sold to Feldschau and the testimony shows that they were charged to Feldschau. 4. Taking the complaint as a whole, there was no variance so material as to mislead the defendant. The judgment will be modified by disallowing the item of $126.17 for tobacco, cigars, and cigarettes, and the proportionate interest allowed on this item, the whole deduction amounting to $136. The defendant will recover the costs of this appeal. In all other respects the judgment will stand as modified. Modified. Burnett, C. J., and Benson and Harris, JJ., concur.