dissenting in part.
I do not concur in so much of the opinion of the court in this case as holds that under this statute the contractor and its surety are liable to creditors of- the subcontractor for sums due them by the subcontractor for labor and material.
The surety is liable for nothing for which the contractor is not liable.
At common law a contractor, who sublets a part of a contract to a subcontractor, is not liable to a person furnishing labor or material to the subcontractor. The liability of the contractor is solely to his subcontractor. When the contractor has paid his subcontractor in full, he has acquitted his whole liability; and in the instant case the contractor has paid the subcontractor all that is due him.
I have had pointed out to me no Maryland statute which has changed the common law in this respect in a case such as this.
I understand the opinion of the court to hold that the Maryland statute requiring the giving of bond in this case does not of itself require the contractor to give bond to pay the debts of the subcontractor for labor and material furnished to the subcontractor. In this view I heartily concur. But this construction of the statute seems to me to be inconsistent with the pronouncement of the court upon the obligation of the contractor and its surety under the bond. The statute (Code Pub. Gen. Laws 1924, art. 91, section 30) requires the bidder (i. e. the contractor) to bind himself “to the payment of all just debts for labor and material incurred by the bidder” (i. e. the contractor). The bond, stripped of unnecessary verbiage, obligates the contractor *512and his surety to “pay * * * every person, furnishing material or performing labor in and about the construction of said roadway * * * all sums * * * due him * ' * * for such labor and materials for which the contractor is liable.”
The bond cannot be construed to make the contratcor liable for the debts of the subcontractor without, in effect, striking out of the bond the words “for which the contractor is liable.” Why is it permissible to strike out of the bond these words, and not permissible to strike out of the statute the words “incurred by the bidder?”
As I view the matter, in both instances the liability of the contractor is limited in plain terms to the payment of debts for which he is legally liable; and there is no language in the statute or in the bond which in its usual and ordinary acceptation may be construed to create any new liability upon the contractor by virtue thereof.
The function of a court is to construe the language used in a statute or contract, and enforce the statute or contract as written. It is not its function, or prerogative, to enact a new statute, or write a new or different contract for the parties by the addition or deletion of words. As the court says, the parties to contracts “must abide by their contracts and pay everything which by fair intendment can be charged against them.” But by the same token, every party to a contract is entitled to abide by the contract which he has made, and not to be forced to abide by a different contract made for him by the court, because, perchance, it thinks that under sound public policy the legislature, or some administrative officer, should have in terms required him to make such a contract. This seems to me to be a primary and cardinal principle of law which should not be given mere lip service, and then more honored in its breach than in its observance in actual application.
I have examined with care the opinions cited in the court’s *513opinion, and many others from courts of great ability and high authority. But in so far as they support the conclusions reached by the court, they are either based upon statutes materially different from that here in question, or upon finespun and rather strained arguments.
The arguments advanced seem to me to veil but thinly the underlying fact that the court has either assumed to legislate upon what the bond should be required to provide, or, in effect, has assumed to write a new contract for the parties by making additions or deletions, because in its judgment it was expedient for the legislature, or some administrative officer, to have required such a bond. Some of the opinions read more like an apology for a decision than a reason for a conclusion. In others little attempt is made to justify the decision other than on the ground that it follows the precedent set by some other court.
If it be the intention of the legislature or of a State highway commissioner to require a contractor to give bond to pay the debts of his subcontractor, though he may have in good faith paid the subcontractor in full, it is a very simple matter to so state in plain language in .the statute or bond, and to define therein the distance down a possible chain of subcontractors that such liability shall extend. If such is their intention let them say so; but where the statute or the language of the bond, when given its ordinary and usual meaning, and construed as other contracts are construed, fails to provide that the contractor shall be so liable, such a provision should not be inserted by courts by resort to finespun arguments, based primarily upon what they think it would be good public policy to require the contractor to agree to. The very fact that there is none to say them nay should make courts but the more cautious not to assume to legislate or write contracts for people.
It may be that the legislature has the power to make a *514contractor doing public work give bond to pay the debts of subcontractors down a chain of subcontractors reaching well nigh ad infinitum. But it is not reasonable, in the absence of the plainest of terms, to assume that it or an administrative officer has done so. In view of other decisions by this court and the pronouncement made by the court in this case, it would be interesting had it informed contractors and surety companies how far down a chain of subcontractors the doctrine pronounced by it applies.
The State (A) contracts with B to build a cement road. B contracts with S to furnish the stone for this job. S acquires from a farmer the right to take from a quarry on his land sufficient stone for this job, and contracts with U to quarry the stone and haul it to his crusher on the roadside. U contracts with It to quarry the stone and prepare it for hauling to the crusher. R contracts with D, a water boy, to supply his gang with water while on this job. D contracts with L, the wife of the farmer, to board him and send him his lunch while on this job. L contracts with Y to carry lunch to D while on this job. (“Food stuffs for the men engaged in the work and hay and grain .for the teams so engaged” are materials furnished for such work. Fidelity, etc., Co. v. Bailey-Pleasants Co., 145 Va. 126, 133 S. E. 797.) How far down this chain does the doctrine pronounced by the court apply?
If A pays B, and B pays S, and S pays U, and U pays R, and R pays L, but L fails to pay Y, may Y sue B and the surety on his bond for what L owes him? If not, what is the line of demarcation; and upon what principle is it drawn? If so, where do we get off?
How long must B withhold payment from S in order that he may not (after both S and U have been paid in full) also have to pay R, if U fail to pay him? And what right has B to withhold from S the sum due him by B, because U may not have paid R? What enactment makes S liable *515for sums due by U to R? If the contract between U and R be a written contract, the claim of R would not be barred against U for five years, and not until the lapse of three years if it be an oral contract. Must B refuse to pay S for five or three years, as the case may be, in order to be protected against demands of R for sums due him by U?
If the contract between B and S requires B to pay S weekly for all work done to date, and the contract between S and U requires S to pay U monthly for all stone prepared for the crusher, what is B to do? He has no control over the periods at which S contracts to pay U. May he withhold payment from S until the due dates of S’s obligations to U, and not have breached his contract?
• Or suppose R undertakes to feed his workmen, and though the work is being done near Ashland, buys on open account food stuffs from three Richmond merchants, three Washington merchants, and three Baltimore merchants, and hauls the food stuffs to his location by his own trucks. May these merchants, of whose debts B has no notice or means of knowledge, sue B and his bondsman at any time before the debts are due them by R are barred by the three-year limitation? If so, what means are open to B to ascertain the outstanding indebtedness of this sub-sub-subcontractor, R? Or what requirement is there that they notify B of the fact that U is indebted to them?
The public policy upon which the holding of the court in this case is based finds legislative expression in the mechanics’ lien law. But the legislature has provided the answer or the key to the answer to the questions above suggested by definite provisions of the statute which give the lien or provide for the fixing of personal liability.
Not so with the judicial legislation of the cases which the court has followed in its opinion. The courts in this line of cases have given a demonstration of one practical reason why courts should in such cases be careful not to *516enter the field of legislation. They can make a beginning under the garb of construction and, in effect, enact that a contractor shall be liable for the debts of his subcontractors; but this done, they cannot go forward and finish the job. For to provide the necessary definition, limitation and restriction of the liability created by them, they must throw off the cloak of construction and step boldly forth into the legislative field.