This action was brought by appellee, Indianapolis Mortar and Fuel Company, against Thomas J. Markey & Co., as principal, and appellant, as surety, on bonds given to secure the performance of certain contracts between the city of Indianapolis and said Thomas J. Markey & Co. for the construction of various sewers in said city. Appellant filed a separate answer in seven paragraphs. Said appellee’s demurrer for want of facts to the third, fourth, fifth and sixth paragraphs of said answer.was sustained. A trial of said cause by the court resulted in a finding in favor of appellee, and over a motion for a new trial judgment was rendered against appellant. The errors assigned and not
It is said in appellant’s brief that “the several assignments of error in this case present but one question, and that is, whether upon the completion of the work or of the approval of the final assessment roll the liability of appellant upon its bond ceased and terminated.” It appears from the record that the action was brought after the acceptance of the work and -the completion of the assessment roll. Appellant claims that its liability terminated on the acceptance of the work or the approval of the assessment roll. If this contention of appellant is correct, the judgment must be reversed, if not, it must be affirmed.
1. There was a provision in the contracts that the contractor should pay for material furnished and labor performed in the construction of said sewers. The bonds sued on were given to secure the performance of said contracts. The contracts and bonds must be construed together. Closson v. Billman (1904), 161 Ind. 610, 614, 69 N. E. 449, and cases cited.
2. It is settled in this State, that a bond given to secure the performance of a contract for a public improvement, which provides, as in this case, that the contractor shall pay for all materials used in such improvement, inures to the benefit of those furnishing said materials who may maintain an action thereon in their own names. Hines v. Consolidated Coal, etc., Co. (1902), 29 Ind. App. 563, 64 N. E. 886; Williams v. Markland (1896), 15 Ind. App. 669, 44 N. E. 562; Young v. Young (1899), 21 Ind. App. 509, 514, 52 N. E. 776; American Surety Co. v. Lauber (1899), 22 Ind. App. 326, 329, 331, 53 N. E. 793; Brown v. Markland (1899), 22 Ind. App. 652, 53 N. E. 295; King v. Downey (1900), 24 Ind. App. 262, 56 N. E. 680; Ochs v. M. J. Carnahan Co. (1908), 42 Ind. App. 157, 76 N. E. 788, 80 N. E. 163; Knight & Jillson Co. v. Castle (1909), 172 Ind. 97, 103,
3. The bonds sued on being given for the protection of materialmen and laborers, as well as for the protection of the city, were dual in their nature, and the right of action of the materialmen is not affected by any act or omission of the city. Dewey v. State, ex rel. (1883), 91 Ind. 173; Conn v. State, ex rel. (1890), 125 Ind. 514, 25 N. E. 443; United States Fidelity, etc., Co. v. American Blower Co. (1908), 41 Ind. App. 620, 84 N. E. 555; United States v. National Surety Co. (1899), 92 Fed. 549, 34 C. C. A. 526; United States, etc., Co. v. Omaha Bldg., etc., Co. (1902), 116 Fed. 145, 53 C. C. A. 465; Chaffee v. United States Fidelity, etc., Co. (1904), 128 Fed. 918, 63 C. C. A. 644; United States v. California Bridge, etc., Co. (1907), 152 Fed. 559; Getchell & Martin Lumber Co. v. Peterson & Sampson (1904), 124 Iowa 599, 615, 100 N. W. 550; School District, etc., v. Livers (1899), 147 Mo. 580, 49 S. W. 507; Steffes v. Lemke (1889), 40 Minn. 27, 41 N. W. 302; City of Duluth v. Heney (1890), 43 Minn. 155, 45 N. W. 7; Village of West Duluth v. Norton (1894), 57 Minn. 72, 58 N. W. 829; Kaufmann v. Cooper (1896), 46 Neb. 644, 65 N. W. 796, and cases cited; Des Moines, etc., Iron Works v. Marxen & Rokahr (1910), 87 Neb. 684, 128 N. W. 31; King & Co. v. Murphy (1896), 49 Neb. 670, 68 N. W. 1029; Doll v. Crume (1894), 41 Neb. 655, 59 N. W. 806; Lyman v. City of Lincoln (1894), 38 Neb. 794, 57 N. W. 531; Griffith v. Rundle (1900), 23 Wash. 453, 63 Pac. 199, 55 L. R. A. 381, 386, 390; City of Philadelphia v. Stewart (1902), 201 Pa. St. 526, 51 Atl. 348.
The board of public works of the city of Indianapolis was authorized to require the bond sued, on by §8698 Burns 1908, Acts 1905 p. 219, §95, and as. the bonds secured the claims of materialmen and laborers, the rule above stated applies. United States Fidelity, etc., Co. v. American Blower Co., supra.
5. While §19 of the specifications for said work, which, with all other specifications for said work, is referred to in the contracts and made a part thereof, provides that “before final acceptance of the work, the contractor shall submit satisfactory evidence to the board that all bills for materials and labor have been paid,” it is evident from what we have said and the cases above cited that the failure of the board of works to require the contractor to “submit satisfactory evidence that all bills for material and labor have been paid” did not release appellant as surety on the bonds sued on.
The contention of appellant, that its liability on the bond terminated on the acceptance of the work or the approval of the assessment roll is based on the following provisions contained in the specifications for said work, which are referred to in the contract and made a part thereof: “46. Bond. Within five (5) days after the successful bidder shall have been notified of the acceptance of his bid he 'shall file with the Board of Public Works an approved bond in an amount not less than fifty (50) per cent of the estimated contract price, but in no case shall a bond be accepted for less than five hundred dollars ($500) conditioned to guarantee the full and complete performance of his work according to the terms of the contract; said bond to be in
All of the bonds sued on contained the following: “The conditions of the above obligation are such, that if the above named party of the first part shall faithfully comply with the foregoing contract made and entered into this-,-, with the city of Indianapolis, Indiana, and shall fulfil all of the conditions and stipulations therein contained, according to the true intent and meaning thereof in all respects, then
The provisions of said specification forty-six and of the bond seem to be inconsistent, because said specification provides that the bond is null and void on the final acceptance of the work or the approval of the final assessment roll, while the bond itself provides that “the sureties shall not be held responsible for the maintenance and repair of the improvement after it has been accepted by the party of the second part, but such sureties shall be held responsible for the faithful compliance with all the other conditions and restrictions set out in the contract. ’ ’
6. It is evident that if there is any inconsistency between the provisions of the specifications and the bond, that the provisions of the bond ought to prevail, because it is presumed that the plans and specifications were prepared first, and that the bond, which was executed after the specifications were prepared, contained the last expression of the parties as to their rights and liabilities. Meyer v. Berlandi (1893), 53 Minn. 59, 54 N. W. 937; Boteler v. Roy (1890), 40 Mo. App. 234; Greene v. Day (1872), 34 Iowa 328.
The provision in the bond, that “this shall be a construction bond and the sureties to the same shall not be held responsible for the maintenance and repair of the pavement after it has been accepted by the second party, but such sureties shall be held responsible for the faithful compliance with all other conditions and restrictions set out in the con
Construing the specifications in connection with the contract and bond, it is clear that the surety on the bond is responsible for the performance of the contract, and for any and all claims for labor and material used in the construction of the work before the final acceptance of the same. When the materialman delivered the materials, and they were used in the improvement, his right to recover on said bond vested and was independent of any right of action in favor of the city. The rights of the materialman and laborer were fixed in the contract and bond which were executed after the adoption of the specifications. As the specifications in noway referred to the obligation of the contractor to pay for materials and labor, it is evident that the provision in §46, that the bond should be “null and
This view is sustained by the fact that the board of works by subdivision (c) of §46 of the specifications provided that the construction bond continued in force to indemnify and reimburse “the city for any loss or expenditure resulting from any and all injuries to persons or property occurring on or in connection with or about the work or premises covered by the contract prior to the final acceptance of said work by the board of public works, ’ ’ but made no provision to protect the materialmen and laborers. It was as much the duty of the board of works, if its acceptance of the work in anyway affected the right of the materialman to recover on the construction bonds, to protect them, as it was to protect the city. The fact that the board did not do so, shows that the provision of said §46, in regard to the bond, was not intended to and did not affect the rights of materialmen to recover for material used in the construction of the work before the same was accepted.
It follows that appellant’s liability to appellee did not terminate on the acceptance of the work or the approval of the final assessment roll.
The judgment is therefore affirmed.
Note.—Reported in 98 N. E. 706. See, also, under (1) 9 Cyc. 580; (2) 28 Cyc. 1040, 1042; 71 Am. St. 195; (3, 5) 28 Cyc. 1042; (4) 28 Cyc. 1042, 1063; (6) 28 Cyc. 1045.