The contract is by Monaghan, the appellee, with the state of Alabama. And the suit on the bond is by the state for the use of R. S. Armstrong Bro. Company, a corporation.
Pertinent provisions of the bond before us are:
"* * * That whereas the above bound John Monaghan have (has) this day entered into a contract with the said state of Alabama, for the building of the substructure and approaches to the bridge in Cherokee county, * * * copy of which said contract is hereto attached.
"* * * Upon the failure of the said John Monaghan to promptly and efficiently prosecute said work, in any respect, in accordance with the contract," etc.
"Upon the completion of said contract pursuant to its terms, if any funds remain due on said contract, the same shall be paid to said principal or sureties.
"The said principal and sureties further agree as part of this obligation to pay all such damages of any kind to person or property that may result from a failure in any respect to perform and complete said contract, and guarantee the payment of such sums due for labor, material and supplies used in the performance of this contract as set forth under special provisions."
The statute as set out in Judge Bouldin's opinion (Union Indemnity Co. v. McQueen-Smith, etc., 217 Ala. 35, 114 So. 415) is as follows:
"When any work is to be done by contract, whether with individuals, firms, private or public corporations, the state highway department shall require a bond in some guaranty company doing business in this state, of the contractor, for the faithful performance of the work agreed and contracted to be done. Such bonds shall be payable to the state of Alabama and shall be approved by the state highway department and it shall be in an amount equal to the contract price and conditioned to do and perform the work in accordance with the contract or agreement." Code, § 1328.
The two briefs of appellant on the original hearing and that upon the rehearing have been carefully considered.
The court has not and does not modify the decision and opinion in Union Ind. Co. v. State, 217 Ala. 35, 114 So. 415. It was cited with approval in Ed Pettus v. Dudley Bar Co., post, p. 163, 118 So. 153.
The notes in 44 A.L.R. 383-385, indicate that the opinion by Mr. Justice Brandeis in Ill. Surety Co. v. John Davis Co. (1917) 244 U.S. 376, 37 S. Ct. 614, 61 L. Ed. 1206, is in accord with well-considered general authorities. It will not be necessary to repeat the same at this time.
In Bricker v. Rollins Jarecki (1918) 178 Cal. 347, 349,350, 351, 173 P. 592, 593, concerning such a claim forrental of mules and tools used in highway construction, the contract was as follows:
"The bond in the cases before us was conditioned that 'if said principals as contractors in said contract fail to pay for any materials or supplies furnished for the performance of the work contracted to be done in and by said contract, or for any work or labor done thereon of any kind, said surety will pay the same,' etc."
The court said:
"In its most recent rulings as to the construction to be placed upon the above-quoted terms of the statute under which the public work involved in the instant case was to be done, the courts have adopted the views expressed in the case of French v. Powell, 135 Cal. 636 [68 P. 92], and have amplified somewhat upon the reasoning which sustains these views. In the case of Associated Oil Co. v. Commary-Peterson Co., Inc.,32 Cal. App. 582 [163 P. 702], in which a rehearing has been denied by this court, it was held that a plaintiff furnishing gasoline to a contractor for the doing of certain construction work upon the state highway under the provisions of the act of 1897, for the price of which he brought an action upon the bond, which was in the precise form of the bond involved in the instant case, was entitled to recover therefor. The court in that case held the motive power applied by the use of gasoline in the operation of the trucks which hauled the gravel, cement, etc., to be used in the construction of the highway, *Page 137 was thus inseparably connected with and used in the performance of the work provided by the contract to be done and by the bond to be paid for. * * * We are unable to perceive any distinction in principle between the case at bar and the foregoing cases of French v. Powell, supra, and Associated Oil Co. v. Commary-Peterson Co., supra. In the case of the rental of animals or of machinery applying motive power to the performance of the work to be done under the contract, it is the energy of the instrumentality for which the price is paid, and that energy, whether in vital or mechanical or fluid form, is the thing which is supplied for and used in the work. It may not, in the strict sense, be embraced in the definition of the word 'materials,' but we think it may fairly be included within the meaning of the more comprehensive word 'supplies.' In the adoption of these views we are not without persuasive authority from other jurisdictions. These cases are referred to and discussed in the case of Sherman v. American Surety Co.,178 Cal. 286 [173 P. 161], and the conclusions in that case arrived at are hereby approved. The foregoing reasoning applies also to the rental of tools the use of which contributed to the performance of the work. It was the use of the tool and not the tool itself which formed the basis for the claim of recompense. Our conclusion is, therefore, that the appellant's contention as to those claims which involve the rental of mules or tools for use in the performance of the work cannot be sustained."
The same reasoning applies to the rental of the labor-saving machines in question.
Mr. Chief Justice ANDERSON, SOMERVILLE and BROWN, JJ., and the writer, on a reconsideration of the case, are of the opinion that the item of repairs of the hoisting engine andfreight bill incident to its return, in the amount of $217.07, must be eliminated, notwithstanding the fact that the injury to be repaired was not caused in ordinary wear and tear, but was the result of an accident.
The judgment of the circuit court, as corrected by and with the item eliminated, is affirmed for the sum of $3,601.40, with interest from date of rendition of the judgment by the circuit court. The opinion is modified to the end stated, and the application for rehearing is overruled.