Bay City ex rel. v. Sandberg

Oregon Supreme Court

Bay City ex rel. v. Sandberg

163 P. 444, 83 Or. 268, 1917 Ore. LEXIS 28

Oregon Supreme Court·Decided March 6, 1917·Published

Opinion

Mr. Justice Bean

delivered the opinion of the court.

1. The errors assigned challenge the sufficiency of the complaint. The agreement referred to in the bond recites that it was “made and entered into this-• day of February, 1915.” It was signed on February 15, 1915. It names the streets contracted to be improved identically as designated in the bond. The contract is plainly referred to in the written instrument sued on so as to make the same a part thereof. Counsel for defendants contend that the bond set forth as an exhibit in the complaint fails to contain

“the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor or materials for any prosecution of the work provided for any such contracts,”

as required by Section 6266, L. O. L., as amended by Laws of 1913, p. 59. In order to ascertain whether there has been a breach of the bond we must look to the contract, the fulfillment of which the bond is given to secure: Hill v. American Surety Co., 200 U. S. 197 (50 L. Ed. 437, 26 Sup. Ct. Rep. 168); United States Gypsum Co. v. Gleason, 135 Wis. 539 (116 N. W. 238, 17 L. R. A. (N. S.) 906). When we do so we find that Sand-berg undertakes that “he will make all payments to all persons supplying labor or materials for the prosecution of the said work. ’ ’ In the contract he agrees to execute a bond to indemnify the city against all claims for “work and materials furnished on account of any subcontractor.” Failure to pay for the materials as set forth in the complaint would be a breach of the condi" [272] tions of the contract and bond for which the defendant sureties are clearly liable. Such liability is plainly nominated in their bond: Portland v. New England Casualty Co., 78 Or. 195 (152 Pac. 253), and cases there cited. See also the kindred case of Columbia County v. Consolidated Contract Co., ante, p. 251 (163 Pac. 438), in which an opinion has this day been rendered. There was no error in overruling the demurrer to the complaint and rendering judgment upon the written obligation, and such judgment is affirmed. Affirmed.

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Mr. Justice Bean

delivered the opinion of the court.

1. The errors assigned challenge the sufficiency of the complaint. The agreement referred to in the bond recites that it was “made and entered into this-• day of February, 1915.” It was signed on February 15, 1915. It names the streets contracted to be improved identically as designated in the bond. The contract is plainly referred to in the written instrument sued on so as to make the same a part thereof. Counsel for defendants contend that the bond set forth as an exhibit in the complaint fails to contain

“the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor or materials for any prosecution of the work provided for any such contracts,”

as required by Section 6266, L. O. L., as amended by Laws of 1913, p. 59. In order to ascertain whether there has been a breach of the bond we must look to the contract, the fulfillment of which the bond is given to secure: Hill v. American Surety Co., 200 U. S. 197 (50 L. Ed. 437, 26 Sup. Ct. Rep. 168); United States Gypsum Co. v. Gleason, 135 Wis. 539 (116 N. W. 238, 17 L. R. A. (N. S.) 906). When we do so we find that Sand-berg undertakes that “he will make all payments to all persons supplying labor or materials for the prosecution of the said work. ’ ’ In the contract he agrees to execute a bond to indemnify the city against all claims for “work and materials furnished on account of any subcontractor.” Failure to pay for the materials as set forth in the complaint would be a breach of the condi" [272] tions of the contract and bond for which the defendant sureties are clearly liable. Such liability is plainly nominated in their bond: Portland v. New England Casualty Co., 78 Or. 195 (152 Pac. 253), and cases there cited. See also the kindred case of Columbia County v. Consolidated Contract Co., ante, p. 251 (163 Pac. 438), in which an opinion has this day been rendered. There was no error in overruling the demurrer to the complaint and rendering judgment upon the written obligation, and such judgment is affirmed. Affirmed.

Bay City ex rel. v. Sandberg, 163 P. 444, 83 Or. 268, 1917 Ore. LEXIS 28 (Or. 1917).

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