
    No. 622
    AMERICAN GUAR. CO. v. CINCI. IRON & STEEL CO. et
    Ohio Appeals, 3rd Dist., Hardin Co.
    Nos. 165 and 170.
    Decided April 27, 1926
    1139. SURETY BONDS — Where statute contemplates protection for labor and material men in bond; the law will write into the bonds, the provisions of the statute, although the terms and form are otherwise than required by statute.
    Attorneys — C. W. Faulkner, Kenton, B. F. Welty, Lima, and Williams, Sinks & Williams, Columbus, for Guaranty Co.; T. R. Hamilton, Lima, W. H. Rucker and H. C. Busch, Cincinnati, for Iron & Steel Co.; Stillings & Johnson, Kenton, for Supply Co.
   HUGHES, J.

The principal contractor, Potts Brothers, entered into a written contract with the board of education of the Alger Village School District to erect an addition to a school building.

When the bid was filed with the board, Potts Bros, also filed a bid bond of $7000 with the American Guaranty Co. as surety, whereby payment of all claims for labor and material used in the erection were guaranteed. The contract was awarded to Potts Bros, and another bond was furnished in the sum of $33,-000 with the Guaranty Co. as surety; but this second bond did not provide for guaranteeing the payment of all labor and material claims.

In the first of these cases, the Cincinnati Iron & Steel Co. had furnished material to a sub-contractor who in turn furnished them to the principal contractor. The second claim was made by the Cliff Wood Coal & Supply Co. which furnished material directly to the principal contractor. Both claimants sued the Surety Co. in the Hardin Common Pleas and the Company sought to avoid payment of the claims upon the ground that their bond did not provide for payment of these material claims. Judgment was for the claimants in the lower court and upon error proceedings the Court of Appeals held:

1. A question raised in presentation of the first case was that the Iron & Steel Co. was not a sub-contractor within the purview of the statute.
2. The statute, however, provides for che payment and securing of payment of all material furnished; so that there is no difference in the position of the two claimants.
3. The parties to this transaction contemplated a bond as is required by 2365-1 GC. protecting all labor and material men performing labor or material in the construction.
4. By virtue of 2365-4 GC., the law contemplates this kind of a bond; and even though the terms of the bond are not in the words of the statute, the law writes into the bond, the provisions of the statute.
5. The recovery of the claimants is determined by the terms provided by statute rather than the form of the bond given so that the claims must be allowed.

Judgment affirmed.  