City of St. Louis v. Anderson

YALLIANT, J. — This is a suit on a bond, in the penalty of $10,000, given to secure the faithful performance of a contract whereby the defendants William M. and Andrew Anderson contracted with the city to construct a certain sewer in accordance with certain specifications, and in which the defendant the United States Fidelity & Guaranty Company was surety for the contractors. The contract was that the Andersons were to construct the sewer for prices that made the total sum of $96,620.07; but after entering [184] into the contract and giving the bond, they abandoned it, and the city was. compelled to let the contract to another party, Hill and Abbot, which it did, at prices that made the total amount $108,438.75, being $11,-818.68 more than the amount for which the Andersons agreed to do the work. The work, according to each contract, was to be paid for in special taxbills against the lots of land in that sewer district. The work was done under the Hill-and-Abbot contract, and special taxbills were duly issued in payment for the same. The result of the failure of the Andersons to perform their contract was that the property in the district was taxed $11,818.68 more than it would have been if they had performed it. The conditions of the bond were that if the Andersons should faithfully perform their contract according to its terms, and pay to the proper parties all amounts for labor and material employed and used in the performance of the contract, the obligation was to become void; otherwise to remain in full force. The petition states that because of the failure of the Andersons to perform their contract the city was compelled to pay Hill and Abbot $108,438.75 instead of $96,620.07, the price under the Anderson contract, therefore the city has suffered damage to the amount of $11,818.68, which is in excess of the penalty of the bond, $10,000, for which the city prays judgment. At the trial the death of ¥m. M. Anderson was suggested and the plaintiff dismissed as to him; the trial went on as to Andrew Anderson and the surety company and resulted in a judgment for the defendants, from which the plaintiff appealed. Although the petition states that the city was compelled to pay Hill and Abbot the amount named and that thereby it was damaged in the sum of the excess over the Anderson contract, yet that was not the literal fact, nor was it intended to be so understood, [185] because the petition on its face shows that the work was paid for in special taxbills. This court has recently passed judgment on bonds of this kind, and has held that under facts like those above stated the city was not entitled to recover the excess it had been compelled to pay in special taxbills. [St. Louis v. Wright Contracting Co., 202 Mo. 451; St. Louis v. Wright Contracting Co., 210 Mo. 491.] In both those suits the city in its petition assumed to sue as trustee for the property-owners whose property had been burdened with the excess in special taxbills, but the court held that the city was not such trustee under the terms of the bond. In the case at bar the city in its petition does not style itself trustee, but seeks a judgment in its own name for the excess of the cost. Counsel for the city seek to distinguish this case from those above mentioned, by the fact that here the city does not, as it did in those cases, call itself a trustee. It makes no difference what name the city takes or what character it assumes, if it recovers it must recover on the facts of the case; if those facts constitute it a trustee then it is such, otherwise not. If under the facts of this case the Andersons became liable to the property-owners who had to pay the excess of tax caused by their failure, and if the conditions of this bond covered that liability, and if under those facts and those conditions the law would create or imply a trusteeship in the city for the use of those property-owners, then the city would be such whether called by that name in the bond or not. This court held in the Wright cases that those facts and conditions did not make the city a trustee for the property-owners, therefore the city could not recover for their loss or injury. There is no difference in principle between this case and the Wright cases. This loss in this case fell not on the city, it was not paid out of the city treasury, nor was the city [186] liable for the excess; the burden fell alone on the property-owners. The only theory on which the city could recover for the loss or injury that resulted to the property-owners, for the failure of the Andersons, would be that it was a trustee for their use, but such is not the fact in this case. The city cannot, in its own name and for its own benefit, recover for the loss sustained by the property-owners, and the facts not constituting it a trustee for their benefit it cannot recover for them. It is argued that the condition of the bond calls for a faithful performance of the contract, and therefore it covers all loss resulting from failure to perform, and that is so. Under the facts of this case there has been a breach of the bond and the obligors are liable for whatever damage has resulted from the breach, but their liability to the city is for the damage the city has sustained, not that sustained by some one else. If the city had, in this instance, sued for damages it had sustained, it would on proof have been entitled to recover nominal damages without proof of specific loss, though of that we say nothing, but since the city has seen fit to sue only for the loss that resulted to the property-owners, it is not entitled to recover at all. The judgment is affirmed. All concur.