concurring. The surety bond given by the appellant recites that it is written in accordance with Act 351 of 1953 as amended. That act, however, expressly requires a bond only to secure indebtedness for “labor and materials.” Ark. Stat. Ann. § 51-635 (Supp. 1965). Hence the appellant argues that it is not liable for claims for the rental of heavy equipment, as such claims do not represent either labor or materials.
I think the answer to this contention is that the city should have required a bond from the general contractor, under the mandatory provisions of Section 1 of Act 351, supra. § 51-632. In that event the pertinent provision of Ark. Stat. Ann. § 14-604 (Supp. 1965), which requires that the bond secure claims for rental of equipment, would have been read into the bond.
The city, however, failed in its duty to exact a bond from the general contractor. Instead the parties, apparently as a device to circumvent the statute, created a nonprofit corporation to go through the motions of letting the contract before transferring the property to the city.
When thereafter the appellant made the bond in question to indemnify the obligee, a subcontractor, against claims arising out of a sub-subcontract awarded to the appellant’s principal, the appellant must have known that the bond was made in connection with construction falling within the scope of Section 1 of Act 351, cited in the bond. In the circumstances the provisions of § 14-604 ought to be read into the bond, just as would have been the case if the city had complied with the law. The dominant intention' of the legislature was to require a bond when public construction is involved, for such projects are not subject to liens.