
    U. S. FIDELITY & GUARANTY CO. et al. v. HENDERSON COUNTY et al.
    (No. 502-4042.)
    (Commission of Appeals of Texas, Section B.
    Dec. 2, 1925.)
    Highways c&wkey;ll3(5) — Contractor’s bond interpreted in connection with valid statute requiring bondsmen, to pay for , materials, though parties attributed requirement to unconstitutional act.
    Road contractor’s bond to perform contract covering all labor, materials, etc., required to complete work, should be interpreted in connection with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6894f, so as to require bondsmen to pay for materials, though parties attributed such requirement to invalid statute (Vernon’s Ann. Civ. St. Supp. 1918, art. 5623a).
    On motions for rehearing.
    Motions overruled.
    For former opinion, see 276 S. W. 203.
   SPEER, J.

We are perhaps in error in holding that the bond of plaintiff in error, United States Fidelity & Guaranty Company, when read in connection with the contract which it secures, guaranteed the payment for, as contradistinguished from the furnishing of, the materials used in the building of the road in question. But it is apparent we did not mean to deny the conclusion of the Court of Civil Appeals that the bond should be interpreted in connection with article 6394f of the statute (Vernon’s Sayles’ Ann. Civ. St. 1914). In truth, our discussion of the matter shows we thought the bond was clearly authorized and required by this article, and, the judgment of the Court of Givil Appeals being supported by this conclusion, we here now formally approve the reason as well as the decision. All parties contemplated the bondsmen should become liable for the payment of material entering into the work, for article 5623a, Vernon’s Ann. Civ. St. Supp. 1918, plainly so provides. That this article is impotent within itself to impose this duty does not make futile the intention of the parties to assume such liability, where the law in reality elsewhere requires just this undertaking. That the parties mistakenly attributed this requirement to the invalid, rather than to the valid, statute can make no difference.

We have carefully considered this motion, as well as the motion for a rehearing by the other parties interveners, and recommend that all motions be overruled.  