The specifications required the contractor to give a bond to indemnify the municipality and "also to secure the payment of all laborers and materialmen who have performed work or furnished material to the contractor in the prosecution of the work. The form and condition of the bond provided for in this paragraph and to be used is hereto attached and bound herewith and made a part hereof."
The surety company executed the bond so described with the contract, including these specifications attached to it.
I think the purpose of the prescribed form of bond as clearly defined in the specifications attached to it was quite sufficiently indicated and made a part of the bond to make the laborers and materialmen in question parties for whose benefit and protection the bond was given within the meaning of our act, and that they are therefore entitled to recover thereunder against the surety.
In the Standard Gas Power Company case (90 N.J.L. 570) the contract required the furnishing of a bond to indemnify and save harmless the municipality from all claims relating to labor and materials furnished for the work, and the form of the bond prescribed to carry out this undertaking of the contract to give a bond indemnifying the municipality, provided as a condition to secure this indemnity the payment for labor and materials furnished. The entire purpose of the bond as expressly provided in the attached contract was the indemnity of the obligee in the bond. I think this quite different from the purpose of the bond in the instant case as defined in the attached contract, which was both indemnity of the obligee and payment to the laborers and materialmen. *Page 518
I am requested by Justices Parker, Black, Kalisch and Katzenbach, and by Judges Gardner and Van Buskirk, to say that they concur in the views above expressed.
For affirmance — PARKER, KALISCH, BLACK, KATZENBACH, WHITE, GARDNER, VAN BUSKIRK, JJ. 7.
For reversal — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, MINTURN, CAMPBELL, LLOYD, McGLENNON, KAYS, JJ. 8.