Plumbing Supply Co. v. Board of Education

142 N.W. 260, 32 S.D. 129, 1913 S.D. LEXIS 196

• Court: South Dakota Supreme Court
• Decided: June 24, 1913
• Status: Published

Opinion

McCOY, J.

From the allegations of plaintiff’s complaint it, in substance, appears that defendants are the board and members of the board of education of the independent school district of the city of Canton; that defendants by contract employed Symms-Powers Company as contractor to construct and install a heating plant in a public school building; that said contractor entered into a bond, with sureties, for the faithful performance of said contract, but that defendants neglected, omitted, and failed to require to be inserted and contained in said bond the further and additional obligation binding said contractor to promptly make payment to all persons supplying it with labor and materials in the construction of said heating plant; that plaintiff furnished labor and materials which were used by said contractor in constructing said- plant to the value of .$1,697.65; that said contractor completed said plant, and defendants accepted and approved the same on the 27th day of October, 1911; that said contractor has not paid plaintiff for said labor and materials or any part thereof ; and that said contractor at the time of the completion of said plant, ever since has been, and now is, insolvent, and that plaintiff has been and now is unable to collect for said labor and materials, and that said contractor has no property or assets out of which áaid claim can .be collected or realized. To this complaint defendants interposed a demurrer on the ground that the same did not state facts sufficient to constitute a cause of action. From the order sustaining said demurrer the plaintiff appeals.

[1] Appellant cites and relies solely upon the provisions of chapter 138, Faws of 1907, to maintain this cause of action. If said chapter 138 was the only statute law of this state upon the subject of contractors’ bonds, it might well be questioned whether plaintiff could maintain such an action for such neglect against a quasi municipal corporation, such as a school district, in the absence of an express statute authorizing the maintenance of such an action. But we are of the opinion that chapter 245, Faws of 1909, inherently amends and modifies the provisions of said chapter 138, and expressly authorizes the maintenance of such an action, provided such action is commenced within 90 days from the time of the acceptance of the work.

[2] It appears from the complaint that the work involved in this case was accepted on the 27th day of October, 1911, and it appears from the record that this action was commenced on the nth day of May, 1912, some four months after the expiration of said 90-day limit.. As such 90-day limit is in the nature of a statute of limitation, defendants could only avail themselves of the benefit thereof by an affirmative answer.

The order appealed from is reversed, and the cause remanded, and defendants given 30 days from the date of the filing of the remittitur in which to serve answer to said complaint, should they so desire.