Glencoe Lime & Cement Co. v. Wind

BIGGS, J. This action is founded on a contractor’s bond. The defendant Wind is the principal in the bond, and his co-defendants are his sureties. The Board of Education of the city of St. Louis contracted with Wind to furnish the necessary materials for plastering one of the school buildings in the city. The bond was given to secure the performance of this contract. The plaintiff furnished to a subcontractor under Wind, lime, plaster, cement and hair, which were used in the building, and for which the subcontractor and Wind failed to pay. The plaintiff contends that the bond was intended as security for all persons who might furnish materials for the improvement. The defendants demurred generally to the petition, which demurrer the circuit court overruled. The defendants refused to plead further, and thereupon an inquiry of damages was had, which resulted in a judgment for plaintiff, from which the defendants have appealed. Omitting caption, the petition is as follows: “Plaintiff states that the Board of Education of the city of St. Louis is a corporation existing under the laws of the State of Missouri, and has a charter of which public notice is required to be taken in all courts and all places, and that the plaintiff, the Glencoe Lime & Cement Company, is a corporation duly incorporated under the laws of the state of Missouri. “Plaintiff states that heretofore, to-wit, on or about the twentieth day of December, 1897, the said The Board of Education of the city of St. Louis, entered into a contract with the defendant, Anton Wind, to construct, erect and build an [166] addition to the Des Peres School, in the city of St. Louis, state of Missouri; that it was provided in said contract that the said defendant, Anton Wind, furnish, at his own cost and expense all the materials used in the construction of said work; that there was attached to and made a part of said contract an obligation signed by said defendant, Anton Wind, as principal, and said defendants, H. Meinholtz, Frederick Kroeger, Gottlieb Goessling, A. Riemann and John FL Dress, as sureties, whereby the said principal and sureties bound themselves and their respective heirs and executors and administrators unto the said The Board of Education of the city of St. Louis in the penal sum, of eight thousand two hundred and fifty dollars, lawful money of the United States, conditioned that in the event the said Anton Wind should faithfully and properly perform the foregoing contract according to all the terms thereof, and should make payment to all the parties furnishing material used in the work provided for in said contract, and for all the labor performed on said work, whether by subcontract or otherwise, then said obligation should be void; otherwise to remain in full force and virtue; that said contract was also signed by the president of said The Board of Education of the city of St. Louis, and by the secretary and treasurer of said board, and the same was approved as being in conformity with the action of said board by the attorney thereof, which contract is numbered 344, and is on file in the office of the secretary and treasurer of said board, a certified copy of which contract and bond is herewith filed and marked exhibit A. “And for a breach of said bond, plaintiff states that the defendant, Anton Wind, did enter into a contract with L. E. Resinger & Co., of the city of St. Louis, to do all the plastering for the alteration and additions to the said Des Peres School required under the provisions of the aforementioned [167] contract, and that between July 1 and August 15, 1898, inclusive, the said L. E. Eesinger & Co., did purchase and receive from this plaintjff, lime, plaster, hair and cement, which articles the said L. E. Eesinger & Co. and the said Anton Wind used in the construction of said additions and alterations of the said Des Peres School, under the provisions of the said first mentioned contract. The aggregate value of the merchandise so furnished by the plaintiff and so used in said construction between the dates aforesaid, is $168.80, and the items thereof are fully set forth in the account hereto attached and marked Exhibit B. “Although defendants have been requested to pay plaintiff for said merchandise so used in the construction of said building, the defendants have altogether neglected and refused to pay plaintiff. And plaintiff further says, that the said L. E. Eesinger & Co. have failed, neglected and refused to pay said account, and that said L. E. Eesinger & Co. are wholly insolvent and are non-residents of the state of Missouri. “Plaintiff says that it has at all times been familiar with the contracts of the said The Board .of Education of the city of St. Louis, and that in delivering said goods to the said L. E. Eesinger & Co. and the said building, it has relied upon the provisions set forth in the foregoing referred-to contract and bond. “Wherefore plaintiff prays judgment against said defendants for the penalty of said bond in the sum of $8,250 and for interest upon the same, and that damages to plaintiff be assessed on said bond in the sum of $168.80 with interest and costs.” All questions presented in briefs of appellants have been settled adversely to them by the decisions in this state, therefore, it is useless to discuss contrary rulings in other jurisdictions. [168] In the case of the city of St. Louis v. Von Phul, 133 Mo 561, the court decided, in accordance with the rule in this state since the decision in Rogers v. Gosnell, 58 Mo. 590, that “a contract between two parties upon a valid consideration may be enforced by 9 third party, when entered into for his benefit, is well-settled law in this state. This is so though such third party may not be named in the contract, and though he was not privy to the consideration. Rogers v. Gosnell, 58 Mo. 590; State ex rel. v. Gaslight Co., 102 Mo. 482; Ellis v. Harrison, 104 Mo. 276, and cases cited. It is sufficient, in order to create’ the necessary privity, that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim.” Further on in the opinion (loc. cit. 571) the court approved the decisions in other cases which uphold the right of third persons, such as subcontractors, laborers and materialmen, to maintain an action on a contractor’s bond given to a state, county, city or school district, conditioned for the faithful-performance of a contract to construct a public improvement, and for the payment of the claims of all such persons who might do work thereon, or furnish materials therefor. The ruling in such cases is on the theory that as public buildings or other improvements are not subject to a mechanic’s lien, a moral obligation or duty rests on public officials entering into such contracts to protect or secure third persons, who might engage in making such improvements, in the payment of their just claims. Therefore we hold that the petition in the present ease states a good cause of action on the bond, for it is averred that the contract was to build or repair a public school building; that the bond was conditioned for the faithful performance of the work by "Wind, and for the payment by him of all claims for materials used in the building; that plaintiff furnished such materials to a subcontractor under [169] Wind, and that the subcontractor and Wind had failed to pay for them. It is insisted, however, that Wind only obligated himself in the contract to pay those who might furnish materials directly to him, and that, therefore, plaintiff’s claim was not secured -by the bond, as it furnished the materials to a subcontractor. A sufficient answer to this is that the sufficiency of the petition must be determined by the allegations therein. Exhibits filed along with it are no part of it, .hence the contract is not before us. Eor the purposes of the case we must assume that the petition correctly states the legal purport of the contract. The remaining question that plaintiff can maintain the action without joining The Board of Education as a plaintiff, is settled by the decision of the Supreme Court in Devers v. Howard, 144 Mo. 671. The judgment of the circuit court will be affirmed. All concur.