
    No. 203
    HUGHES-KEENAN CO. et v. NEW AMST. CAS. CO.
    Richland Common Pleas
    Decided Jan. 30, 1926
    1139. SURETY COMPANIES — Fact that clerk of Board of Education failed to certify that sufficient money remained in treasury in respect to contract calling for building of public school house, does not make contract with bondsmen void; and the material men have a direct action on the bond and have no concern with the validity or invalidity of the original contract.
    Attorneys — C. H. Workman for Hugh-Keenan Co. et; William McWeldon for Casualty Co.; both of Mansfield.
   GALBREATH, J.

These cases were instituted in the Richland Common Pleas by the Hughes-Keenan Co. and the Medal Brick and Tile Co. against the New Amsterdam Casualty Co. and the petition in each case presents a case of a direct action by a material man against the surety company in its bond for the contractor for a public building.

The petition in each case omitted any averment as to the original contract between the Board of Education and the contractor and no averments were made with respect to the validity of said contract and no reference was made as to whether the Burns’ Law has been complied with, in that the clerk of the Board of Education had filed the required certificate under 5660-61 GC. The Court, upon the demurrer of the Casualty Co., held:

1. The petitions are good since the plaintiff in each case has stated a cause of action that would not require the aid of an illegal transaction (if it be presumed that the contract is void by reason of the absence of the certificate) to establish his case.
2. The bond has an independent consideration from the contract and its obligations will be enforced though indirectly connected with a presumptuably illegal transaction.
3. This suit is on the bond and not on the contract and the demurrer in each case is overruled.

Demurrer overruled.  