dissenting. I readily concede that due to the coincidence that the same surety signed both bonds involved in this matter, and that the contractor defaulted in both cases, substantial justice is done to all parties by the decree rendered by the majority of the court. I believe, however, that the holding of the majority is not in accord with the jurisprudence of the state, and establishes a principal which, in other cases, will produce results not contemplated nor desired.
I agree that it is not necessary for a materialman to follow his material and to show that every item furnished by him went into the building and that, under the jurisprudence, all that is required of him is to show that it was delivered “on the job.” I believe that the material for these two jobs should have been ordered and billed separately, and if it had been, all that the materialman would have been required to do would be to show that each order had been delivered at or on the property on which the respective building was being erected. Here, however, there are two separate contracts, two separate bonds and two separate pieces of real estate, and the material chargeable to each of the contracts should have been billed against that contract and not against all the work that was going on in that square.
Suppose one of the jobs had been completed by the contractor without loss, and the loss on the other had fexeeeded the amount of the bond on that other contract. Would it be eq,uitable to hold the surety just because it happened to be the- same on both contracts, not only for the full amount of the bond on the contract on which the contractor had defaulted, but also for so much of the other bond as might be required to make good the deficiency resulting from the fact that the loss on the other job exceeded the amount of the bond?
Suppose, again, in the case before us, that there had been two different sureties, would it be equitable to allow the material-*66man who has furnished the material for both jobs, but who has not been sufficiently alert and, diligent in the protection of his interests to bill the orders separately, to require of the sureties to fight out between themselves how much of the bill each of them owes.
In the case before us it appears that there were two contracts and two bonds, and in each case both were recorded in the mortgage office. This recordation is required so that all furnishers of material may have full knowledge as to who is the surety and as to what are the conditions of the contract and the bond. If the materialman involved here had been diligent in the protection of his interests, he would have known that there were two jobs and that, in order to hold the surety on either of the jobs, he should furnish the material for that particular job, and he could not be allowed to claim that, just because he furnished material to the contractor for his general operations, he could select which bond he wanted to charge that .material against; or, better still, charge it all against both.
If he cannot trace his material into each building he must at least show that he furnished so much for one building and so much for the other.
Counsel for the materialman concedes that if the two buildings had been on different streets, there would have been a necessity for the materialman to bill each job separately — so much for the job on this street and so much for the job on that one. If, then, it is necessary to separate the bills under those circumstances, where the material must be physically separated, how much more necessary it is to bill it separately in a case like the one before us, where the material may so easily become confused.
We are told that it is not the custom for materialmen to bill supplies against a particular job, but that they bill them against a general open account of the contractor. My answer is that the fact is, on the contrary, that all careful material-men do bill the material sold against the particular job into which it is expected to go. Of course, the charge is made against the contractor, but the general custom is to enter on the books a separate account for each job. Thus one contractor may, and certainly should, on the books of one materialman, have several different accounts ■ — this one on that job, this one on the other job, etc.
By allowing the material to be furnished as it was here, the surety is in effect told: ‘‘You are liable in each case for the full amount of both bonds, and if either contract does not work out profitably, you may be held fur the aggregate amount of the bonds.”
For these reasons I respectfully dissent.