Board of Education v. Aetna Indemnity Co.

Mr. Presiding Justice Baker delivered the opinion of the court. There is no statute requiring the Board of Education to take a bond from a contractor for work on a school building, conditioned to secure payment for labor or material furnished to such contractor. But the contracts between Olsen and the Board provide that he shall make prompt payment to all persons supplying him with labor or materials in the prosecution of the. work called for by his contract. The condition of each of the bonds is that Olsen shall perform the contract, etc., and,1 2 shall promptly make payment to all persons supplying him labor or materials in the prosecution of the work provided for in said contract.” The real meaning of the parties is that the obligors contract to perform the condition of the bond under the conventional sanction of a penal sum. The claims of the Lumber Company are for lumber furnished to Olsen and used in the prosecution of the work provided for in his contracts with the Board of Education, and fall clearly within the very letter of the condition of the bonds. To hold the bonds in question valid and binding is only to compel the obligors to do the thing they bound themselves to do. The distinction between these cases and Spalding Lumber Co. v. Brown, 171 Ill. 487, and Searles v. City of Flora, 225 id. 167, is, that in those cases the bonds contained no condition that the obligors should pay for labor or materials furnished to the contractors, and in these cases the bonds contain such conditions. We do not think that the contention, that because there was no statute requiring the Board of Education to take a bond for the protection of subcontractors, the condition for their protection in the bonds in question cannot be enforced for the benefit of the Chandler Company, is tenable. City of St. Louis v. Von Phul, 133 Mo. 561; Knapp v. Swaney, 56 Mich. 345; Smith v. Bowman, 88 Pac. Rep. 687. The instruments sued on being under seal, only the obligee can maintain an action at law on them; but it is no defense that the beneficial interest is in another, or that the plaintiff when it recovers will be bound to account for the proceeds to another. We find no errors in the rulings of the court on questions of evidence nor on the propositions of law submitted by the respective parties. The judgment in each case will be affirmed. Affirmed.