dissenting in part:
I do not concur with the conclusion reached by the court that those who supplied labor and material to Crowell Contracting Company, Inc. (the subcontractor), can recover from Copenhaver Contracting Company, Inc. (the contractor), and its surety, the Fidelity and Casualty Company, on the bond executed by them to the State of Virginia, which is in issue in this cause.
I am not unmindful of the decision of this court in the case of C. S. Luck & Sons v. Boatwright, 157 Va. 490, 162 S. E. 53, and though I dissented in that case, would feel *146that I was constrained thereby to concur in this case were there not fundamental differences in the facts of the two cases.
• The court in its opinion in this case rests its decision upon its prior decision in the Luck Case, without any discussion of the subject; but, assuming that the court was correct and I wrong in the conclusions reached in that case, it seems to me that if the decision of the court on this point in the instant case be correct, it must bp because of something else than the decision in the Luck Case.
It is not my purpose to enter upon a general discussion of this general subject, but I feel it incumbent upon me to point out as briefly as I can the fundamental differences between the Luck Case and the case, at bar. In order to do this it will be necessary to compare the material parts of the Maryland statute and bond which were involved in the Luck Case with the material parts of the Virginia statute and bond which are involved in this case.
Maryland Statute and Bond Construed in Luck v. Boatwright.
(Italics mine.)
Statute.
Art. 91, sec. 30, Md. Code 1924 (Acts 1910, ch. 721).
“* * * The successful bidder shall * * * execute and deliver to said commission a good and sufficient bond to be approved by said commission to the State of Maryland, not less than the amount of the contract price. In no case shall any such *147bond be approved or accepted unless the obligators bind themselves therein to the payment of all fust debts for labor and materials incurred by the bidder in the construction and improvement of the road contracted for.”
Bond.
“The condition of this obligation is such that if the above bounden ‘Principal,’ as contractor, shall in all respects” comply with his contract and save harmless the State against certain other things “or for any liability for payment of wages due or materials furnished said contractor; and shall well and truly pay all and every person furnishing materials or performing labor in and about the construction of said roadway, all and every sum or sums of money due him, them or any of them for such labor and materials for which the contractor is liable.” * * * “then this obligation to be void.”
*146Virginia Statute, and Bond Construed in Case at Bar.
(Italics mine.)
Statute.
Acts 1922, p. 677, c. 403, §8, Michie’s Code 1930, sec. 1969-h.
“The contract shall be let to the lowest responsible bidder for the particular work covered by the bid, and the successful bidder shall enter into a bond, payable to the Commonwealth of Virginia, in the sum of at *147least thirty per centum of the estimated cost of the work, which bond must be approved by the chairman, and conditioned upon the faithful performance of the work in strict conformity with the plans and specifications for the same.”
Bond.
“The condition of this obligation is such that if the above bounden principal shall in all respects” comply with his contract and save harmless the State against certain things, “and shall promptly pay all just claims for damages, for injury to property and for labor and material, incurred by said Principal in or about the construction or improvement contracted for, then this obligation to be void.”
*148As I understand the opinion in the case of C. S. Luck & Sons v. Boatwright, supra, its conclusions are predicated upon the view that the Maryland statute above quoted makes it manifest that it is the settled legislative policy of that State to protect those who furnish labor, supplies and materials used in and about the construction of public works; that of this policy contractors and their bondsmen must take cognizance; that bonds taken by the Highway Commission of Maryland are to be construed in the light of that legislative policy; and that, therefore, though the condition of the bond reads, “for which the contractor is liable," it should be construed as if it read, “for which the contractor or any subcontractor is 1'iable.” The opinion seems further to rest its conclusions upon a statement of the Maryland court in the case of State v. National Surety Co., 148 Md. 221, 128 Atl. 916, which it interprets to indicate that the Maryland court is of opinion that the Maryland bond is conditioned that the contractor will pay not only his own debts for labor and material, but also those incurred by his subcontractors for such purpose.
There is no provision in the Virginia statute above quoted, or in any other Virginia statute to which my attention has been called, which can be construed to express or indicate any policy on the part of the legislature to require contractors who contract to construct a public work to give bond that they will pay debts contracted even by themselves,, much less by their subcontractors, for labor and material used in the construction of the work.
In Aetna Casualty & Surety Co. v. Earle-Lansdell Co., 142 Va. 435, 129 S. E. 263, 130 S. E. 235, it was held that although the Virginia statute did not require the State Highway Commission to take a bond conditioned that the contractor would pay all debts incurred by him for labor and material, yet the Commission had the power to require a bond more broadly conditioned than is required by the statute; and that if such a bond is voluntarily given in consideration of the contract, it may be enforced according to *149its terms. Accordingly it was held that the surety on the contractor’s bond was liable to persons to whom the contractor himself became indebted for labor and materials. Nowhere, however, is it suggested in the opinion in this case that the contractor and his surety thereby become obligated to pay debts contracted by a subcontractor for labor and materials. The whole theory of the Earle-Lansdell Case is that though the bonds taken by the State Highway Commission are not statutory bonds, in so far as they are conditioned more broadly than the statute requires, they are good as common law bonds, and are enforceable according to their terms.
My view is that there is no statute in Virginia declaratory or indicative of a public policy to require contractors to give bond for the protection of those who supply labor or material for a public work; and that, in so far as the bonds taken by the State Highway Commission contain a provision with reference to the payment of debts incurred for labor and materials, they are common law bonds, and are to be construed as common law bonds are construed.
Applying the principles applicable to the construction of common law bonds, I think it is not permissible to construe the bond here in question so as to change its language, which reads, “and shall promptly pay * * * for labor and materials, incurred by said principal in or about the construction,” so as to read, “and shall promptly pay * * * for labor and materials, incurred by said principal, or his subcontractor, sub-subcontractor, etc., in or about the construction,” etc. To do so seems to me to be to assume the power to write a new and entirely different bond for the parties thereto.