Hydraulic Press Brick Co. v. School District

79 Mo. App. 665, 1899 Mo. App. LEXIS 343

• Court: Missouri Court of Appeals
• Decided: April 18, 1899
• Status: Published

Opinion

BLAND, P. J.

The plaintiff counts upon the following alleged facts: That theKirkwoodSchoolDistrict on the thirty-first of May, 1897, entered, into a contract with Wilson & Billings, tfor the erection of a school building for the district; that Wilson & Billings sublet the brick work of said building to Otto Schwartzburg; that plaintiff sold and delievered to Schwartzburg $1,154 worth of brick which were used in the construction of said building; that a balance of $604.12 of the purchase price of said bricks was due and unpaid, and that Schwartzburg is insolvent; that the school.district and its directors, the defendants, failed to take from Wilson & Billings the bond provided for by act of the general as-' sembly, approved February 23, 1895; that plaintiff believed when it sold and delivered the bricks to Schwartzburg that such a bond had been given, and relied upon the bond for his pay.

The answer admitted the incorporation of the school district and that the defendants constituted its board of directors, but denied every other allegation. At the trial defendants objected to the introduction of any evidence, on the ground that the petition did not state a cause of action. The court sustained the objection as to the school district, but overruled it as to the directors. The trial, which was to the court, proceeded against the directors, resulting in a judgment for defendants, from which plaintiff duly appealed. The act of 1895 on which appellant relies for support of its right of action reads as follows:

“Section 1. All counties, cities, towns and school districts making contracts for public work of any kind to be done for such county, city, town or school district, shall require every contractor to execute a bond with good and sufficient securities, and such bond, among other conditions, shall be conditioned for the payment of all material used in such work, and all labor performed on such work, whethér by subcontract or otherwise.

“Section 2. Every person furnishing material or performing labor for any contractor with any county, city, town or “School district, where bond shall be executed as provided in section one, shall have the right to sue on such bond, in the name of such county, city, town or school district, for his use and benefit; and in such suit it shall be sufficient to file a copy of such bond, certified by the clerk or secretary of such county, city, town or school district, which copy shall, unless execution thereof be denied under oath, be sufficient evidence of execution and delivery of the original; provided, however, that this act shall not be taken to in any way make such county, city, town or school district liable to such subcontractor, materialman or laborer to any greater extent than it is liable under the law as it now stands.”

pukpose of act of l89S' The evident purpose of the act is to give a right of action on the bond of the contractor to every person who would have a right to file and enforce a mechanic’s lien on the building contracted for, only for the fact that buildings of the corporations named in the act are exempt from operation of the mechanic’s lien law. But for the exemption appellant shows a right to a mechanic’s lien, and therefore Avould have a right of action on the contractor’s bond had one been given, as required by the above act, and itnecessarilyfollowsthat if the defendants as directors of the school district are individually liable to any one damnified by reason of the fact that the statutory bond was not required by them to be given and was not given by the contractors, the appellant is entitled to maintain its action. The act of 1895 does not point out the county judge, the city alderman, the town trustees and the directors of school districts as the persons or collection of persons who shall require the contractor to give the bond for the protection of subcontractor, etc., but names the county, the city, the town and the school districts, as distinct and separate entities on each of which the duty is imposed to require that the bond be given, when it, in its corporate capacity has contracted for the erection of a public building. It is to these corporations and not to the livilig persons through whom they manifest their will and power that the legislature has spoken, and when the contract for the erection of the school building was let by the school district of Kirkwood, it became its duty to require the contractor to give the bond, the duty was h corporate one, and the failure to perform this duty was the negligence of the corporation, and not of the individuals who composed the board of directors of the district. In the letting of the contract and in their failure to take the bond of the contractors, the directors did not act as individuals engaged in the enterprise of erecting a building but as a board of directors through which the school district manifested its will. In Bassett v. Fisher, 75 N. Y. 303, a school teacher sued the trustees of a school district (incorporated) for injuries incurred from stepping into a hole in the floor of her school room, which had been negligently suffered to become and remain in a state of decay, the court in passing on the liability of the trustees, who were made defendants, said: “Eor neglect to perform a duty imposed upon a district school corporation the members of the board of trustees are not individually'liable, the neglect is that of the corporate body, not of individuals composing it,, and the liability rests upon it.” The ruling in this case seems to us eminently just, and in strict line with the current judicial decisions on kindred topics. To hold otherwise would be to establish an exceedingly harsh rule, and to place upon the directors of public school districts and officers of municipal corporations a burden grievous to bear, and one that finds no sanction in the act of 1895, supra, and is not imposed by any other legislation of this state of which we have any knowledge. The corporation — the school district — is expressly exempt by the act of 1895 from liability for negligence alleged in the petition; the directors not being individually liable plaintiff’s petition stated no cause of action, and the judgment is affirmed.

All concur.