GOODE, J. — The Berger Manufacturing Company (plaintiff) sold to Quernheim Sheet Metal Works Company some galvanized iron and solder out of which the Quernheim Company manufactured the guttering, spouting and other sheet metal articles which were needed in the construction of the Ralph Waldo Emerson School Building in the city of St. Louis. Hiram Lloyd had the contract with the St. Louis Board of Education to erect that schoolhouse.
He made a contract with the Quernheim Company to furnish him the guttering and other sheet metal articles he would need in constructing the house according to the contract. The testimony of William H. Quernheim, President of the Quernheim Company was that said company purchased from the plaintiff (Berger Manufacturing Co.) 12,430 pounds of galvanized .iron at $3.99 a hundred pounds and 105 pounds of solder at 17 cents a pound, making a total of $513. 81.
These materials were delivered by the Berger Company at the Quernheim Company’s 'shops and made by the latter company into gutters, spouts and hot-air pipes. The manufactured articles were delivered by the Quernheim Company to Hiram Lloyd at the Ralph Waldo Emerson School Building and were accepted and fully paid for by Lloyd. It seems the Quernheim Company put the spouting on the building.
The contract between Lloyd and the board of education for the erection of the schoolhouse, after setting out the nature of the work to be done and the other details of the contract, and providing how Lloyd should be paid in different installments and that he should be paid the last installment four months after the.acceptance of the building by the boar! of education, contains this clause; 209 “Provided that the wages of artisans and laborers, and all those employed by or furnishing materials to the said party of the second part, shall have been paid and satisfied; and in case the said party of the second part shall fail so to pay and satisfy all and every claim and demand against said building as aforesaid, the said party of the first part may, if it deems proper so to do, retain from the moneys due and coming to said party of the second part enough to pay and satisfy such claims and demands, and therewith pay such claims, it being, however, understood that nothing herein contained shall in any way be construed as impairing the right of said party of the first part to hold the said party of the second part, or his sureties liable on their bond for any breach of the conditions of the same.” The bond in suit was given by Lloyd for the faithful performance of his contract.
The paragraph we have quoted from the contract shows the intention of the board of education was to require Lloyd to pay the wages of artisans and laborers who worked on the building and all persons employed by or furnishing material “to the party of the second part;” that is, to Lloyd. Lloyd had nothing to do with the Berger Manufacturing Company and it furnished him no material.
He made a contract with the Quernheim Company to furnish guttering and spouting for the building and paid said company for those articles when they were delivered or after-wards. The Quernheim Company bought but never paid for the materials out of which it manufactured said articles. In my judgment the Berger Company did not furnish any material to Lloyd within the meaning of the contract and, hence, has no right of action on the bond given to secure faithful performance of the contract.
I therefore favor a reversal of the judgment. Judge Wortoni concurs in this opinion and the judgment of the court below is accordingly reversed.
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