
    The Cleveland Metal Roofing & Ceiling Company v. Gaspard et al.
    
      Suretyship — Bond securing property owner on building contract— Inability of sureties for labor and material — Furnished contractor subsequent to execution of bond.
    
    A bond, entered into by a contractor, in which the owner of a building is named as obligee, conditioned for the performance of the terms and conditions of a building contract between the contractor and the obligee, and for the payment of all claims contracted in reference thereto for material and labor furnished in the erection of the building, is for the protection of the owner of the building, and an action on the bond against the sureties thereon cannot be maintained by a company for the payment of claims, against the contractor arising under contracts entered into between such company and the contractor subsequently to the execution of the bond, under which contracts the company thereafter furnished material and labor in the erection of the building, where the bond does not so provide.
    (No. 13497
    — Decided January 13, 1914.)
    Error to the Circuit Court of Cuyahoga county.-
    Plaintiff brought an action in the common pleas court of Cuyahoga county against the defendants, Nick J. (Gaspard, George Meier and Catherine Gaspard, and from the petition it appears that plaintiff, on the 10th day of November, 1909, entered into a contract with said defendant, Nick J. Gaspard, to complete the sheet-metal work and gravel roofing on an apartment building for the F. Zimmerman Realty Company in the city of Cleveland for the sum of $436, and that on or about the l'7th day of May, 1911, plaintiff completed said work in accordance with said contract; that on or about the 28th day of April, 1910, plaintiff entered into a contract with said defendant, Nick J. Gaspard, who was erecting said apartment building, under the terms of which contract plaintiff was to furnish three standard approved tin-clad fire doors for said apartment building for the sum of $70, and that on or about the 17th day of May, 1910, it furnished said doors in accordance with said contract; that on or about the 16th day of May, 1910, it entered into another contract with said defendant, Nick J. Gaspard, who was erecting said apartment building as aforesaid, under the terms of which contract it was to furnish the labor and material for the metal ceilings on the balconies of said building for the sum of $178, and that on or about the 20th day of May, 1910, it completed said work in accordance with said agreement, and it is alleged in the petition that said plaintiff rendered to said defendant, Nick J. Gaspard, bills for the amounts due under said three contracts, amounting in all to $684, no part of which amount has been paid.
    It is alleged in the petition that the defendants, George E. Meier and Catherine Gaspard, are sureties on a bond given by said defendant, Nick J. Gaspard, to the F. Zimmerman Realty Company, the owner of the apartment building, of which bond the following is a copy:
    “Know All Men by These Presents. That N. J. Gaspard, George E. Meier and Catherine Gaspard of the city of Cleveland, county of Cuyahoga and state of Ohio, held and firmly bound unto the F. Zimmerman Realty Co. of Cleveland, Ohio, in the sum of six thousand dollars ($6,000.00) to be paid to the F. Zimmerman Realty Co., its successors or assigns, to which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, and every one of them, firmly by these presents.
    “Sealed with our seals, and dated this first day of Sept, in the year of our Lord, one thousand nine hundred and nine.
    “The condition of this obligation is such that whereas the said N. J. Gaspard on the 17th day of Aúg., A. D. 1909, entered into a written agreement with the said F. Zimmerman Realty Co., whereby he contracted to provide all the materials and perform all the work for the erection ..and completion of the carpenter work, wooden framing, frames, sash, doors, finish, flooring, roofing, sheet metal work, marble and mosaic, mantel and tile work, glass and glazing, rough and finished hardware for a three story brick apartment building to be erected on the northeast corner of E. 86th street and Birchdale avenue, Cleveland, O., and to furnish all tools, implements and cartage thereto as shown by drawings and specifications by architect, G. B. Bohm, and whereas said contract further provided as follows:
    “ ‘As a condition of this contract to furnish the owner a satisfactory surety bond as agreed in the sum of six thousand dollars ($6,000.00) to guarantee the completion of the work comprehended in this agreement, and to further guarantee the payment of any claims there may be for the payment of material and labor required in the erection of this building,’ and
    
      “Whereas, in lieu of a surety bond, it is agreed between the said parties that said N. J. Gaspard may furnish a bond signed by individuals.
    “Now, therefore, if the said N. J. Gaspard shall well and truly perform all the terms and conditions contained in said contract and complete said work as therein provided and pay or cause to be paid all claims contracted in reference thereto for material and labor, then the above obligation to be void; otherwise the same shall remain in full force and virtue in law.
    “N. J. Gaspard,
    “Geo. E. Meier,
    “Catherine Gaspard.
    “Signed, sealed and delivered in presence of F. Zimmerman.”
    It is further alleged in the petition that, by the terms of said bond, the defendants, Georg'e E. Meier and Catherine Gaspard, guaranteed the payment of all claims for material and labor furnished to said defendant, Nick J. Gaspard, in the erection of said building; that the material and labor furnished by plaintiff to defendant, Nick J. Gaspard, were used by him in the erection of said building, and that there is due plaintiff for material and labor so furnished to said defendant, Nick J. Gaspard, in the erection of said building, the sum of $684, for which amount and interest from the 20th day of May, 1910, plaintiff asks judgment against the defendants.
    The defendants, George E. Meier and Catherine Gaspard, demurred to this petition upon the ground that facts sufficient to constitute a cause of action against them, either jointly or severally, were not stated therein. The demurrer was sustained by the common pleas court, and plaintiff not desiring to amend or further plead as to said two defendants, judgment was rendered against it and in favor of said defendants, George E. Meier and Catherine Gaspard, which judgment was affirmed by the circuit court.
    Plaintiff in error has filed a petition in error in this court, asking for a reversal of the judgment of the circuit court.
    
      Mr. P. C. Hartman, for plaintiff in error.
    
      Messrs. Pomerene & Karch, for defendants in error.
   Newman, J.

It is to be observed that plaintiff, The Cleveland Metal Roofing & Ceiling Company, is not named in the.bond, under the provisions of which it claims its right of recovery against the defendants, George Meier and Catherine Gaspard, the sureties. The obligee named in the bond is the F. Zimmerman Realty Company. The bond recites the fact that the defendant, Nick J. Gaspard, on the 17th day of August, 1909, entered into a written agreement with the F. Zimmerman Realty Company to provide all the materials and perform all the work for the erection and completion of the carpenter work, wooden framing, frames, sash, doors, finish, flooring, roofing', sheet-metal work, marble and mosaic, mantel and tile work, glass and glazing, rough and finished hardware for the apartment building. A personal bond was, by agreement, accepted in Her of a surety bond. It is conditioned that' the defendant, Nick J. Gaspard, shall well and truly perform all the terms and conditions contained in his agreement with the F. Zimmerman Realty Company and complete said work as therein provided and pay or cause to be paid all claims contracted in reference thereto for material and labor. The bond was executed on the 1st day of September, .1909. The contracts, under which plaintiff performed labor and furnished material for Nick J. Gaspard, were entered into subsequently thereto, namely, on November 10, 1909, April 28, 1910, and May 16, 1910, respectively. There is no allegation in the petition that plaintiff had knowledge of the existence of this bond at the time it entered into the several contracts with Nick J. Gaspard, or at the times it furnished the labor and material thereunder, or that it relied upon the provisions of the bond for the payment of its claims against Nick J. Gaspard. Plaintiff, so far as the petition discloses, at the time the bond was executed, was unknown to the parties .to the instrument and had no claim of any kind against Nick J. Gaspard.

The question presented by the demurrer is whether plaintiff has a right of action against the sureties on the bond. It is urged that, under the settled law of this state that an agreement made on a valid consideration by one person with another, to pay money to a third, is enforcible by the latter in his own name, the right to proceed against the sureties on this bond exists in favor of the plaintiff.

An examination of the Ohio cases in which this rule is announced and approved will disclose the fact that in those cases there was an actual and fixed liability on the part of the promisee to such third person at the time the promise was made by the obligor, and the amount for which the obligation was made was either specified or then ascertainable. In the case of Crumbaugh v. Kugler, 3 Ohio St., 544, the grantor conveyed to the grantees certain lands, part of the consideration being an agreement by the grantees to pay the debts due by the grantor, and the debts were in existence and ascertainable at the time of the transfer. Thompson v. Thompson, 4 Ohio St., 333, was a case where the purchaser of real estate agreed to pay an existing mortgage indebtedness; in Bagaley & Co. v. Waters, 7 Ohio St., 359, where Crumbaugh v. Kugler and Thompson v. Thompson, supra, are approved, the purchaser of real estate agreed to assume and pay certain debts existing at the time.

In the well-known case of Emmitt v. Brophy, 42 Ohio St., 82, the court, in commenting upon the bond there under consideration, refers to the fact that, by its express provisions, Emmitt, the obligor, agreed to “pay off and liquidate all claims and demands, liens and debts, whether in judgment or otherwise, existing against said bridge.” At the time the bond was executed, Brophy and Potter had reduced to judgment their claims against the Scioto Bridge Company, the former owner of the bridge, and caused an execution to be levied on the bridge. This levy was subsisting and in full force at the time the bridge was sold to the commissioners of the county. The bond in question was given to the state of Ohio, as nominal obligee, for the use and benefit of Pike county, by Emmitt, who had owned a controlling interest in the bridge company and who received the entire purchase price of the bridge. “These facts,” the court say, “are strongly suggestive that it entered into the contemplation of the parties to this bond at the ;time of its execution, that this particular lien of the plaintiffs upon the bridge was to be discharged by Emmitt. Its existence was known to them, and they seem to have left nothing to conjecture. Indeed, if Brophy and Potter had been expressly named as the lien holders, it is difficult to see how this would have added to the definiteness of the bond, or made more certain the intention of the parties. This seems to be a conclusive answer to the suggestion that there is a want of privity between the immediate parties to the bond and the plaintiffs, which is chiefly relied upon by Emmitt as a defense.”

Judge Spear, in the well-considered case of C. H. & D. Rd. Co. v. Bank, 54 Ohio St., 60, discusses the rule under which plaintiff here is claiming its right to recover, cites the case of Emmitt v. Brophy, supra, with approval, and refers to the language of the court in that case which we have quoted above. The learned jurist calls attention to the fact that none of the cases announcing the rule carries the doctrine farther than it is carried in the Emmitt case, and then uses this language: “In no one' of them is it held that a right to sue in a stranger can be raised by mere implication. Nowhere is it held that the obligation will attach in favor of future' creditors not named and not known, and as to amounts not specified or then ascertainable, to the extent of giving to such creditors a right of action on the contract.”

We concur in the view thus expressed by Judge Spear, and this limitation or qualification of the rule, we think, precludes a right of recovery in favor of plaintiff against the sureties on the bond here, for, at the time of the execution of the bond, plaintiff was not named or known, and, of course, the amount claimed in his petition to be due could not be specified and was not ascertainable.

The deduction to be drawn from the cases to which we have called attention, and from the great majority of the decisions of the courts of other states which give sanction to the rule under consideration here, is that in order that the third person derive a benefit from the promise of the obligor to another person, it must appear that the contract was made and entered into directly or primarily for the benefit of such third person, and that there was a liability to such third person, on the part of the promisee, at the time of the exe- , cution of the contract. To illustrate, in Emmitt v. Brophy, supra, it was clearly the intention of the parties to the bond that the judgment creditors who held a lien on the bridge were to be directly benefited by the bond. And further there was a liability on the part of the purchasers of the bridge to discharge this judgment lien.

As we view the provisions of the bond under consideration here, the same were primarily for the benefit of the owner of the building. It was a guarantee on the part of the obligors, among other things, of the payment of claims for material and labor required in the erection of the building, and was available to the owner alone upon a showing that it had been required to pay these claims or had suffered loss on account of their ^nonpayment. And, again, it does not appear that there was any liability on the part of the owner to pay any claim for material and labor furnished by plaintiff, or that any liability might arise against it in favor of plaintiff. The bond was conditioned not only for the payment of claims for material and labor, but also for the completion of the work comprehended in the contract between the owner of the building and Nick J. Gaspard. So far as the petition discloses, the owner of the building may have paid to Nick J. Gaspard, prior to the time the contracts between him and plaintiff were entered into, all that was due him under it, the owner’s contract, and, in that event, plaintiff would have no claim against the building or its owner. It is true that, under the lien laws of this state, plaintiff could have asserted a claim to any funds in the hands of the owner due and owing to Nick J. Gaspard, and it might occur to one that the presumption is that plaintiff, with knowledge of the existence of the bond, proceeded upon the theory that it was amply protected thereby and that it was unnecessary to avail itself of the provisions of the lien law. But it must be borne in mind that this is an action against personal sureties on a bond, and there should be a strict interpretation of their obligations. Their liability is limited to the exact letter of the bond, and presumptions cannot be indulged in to’aid plaintiff in enforcing a liability against them.

Recognizing, as we do, the right of a third person to enforce, in his own name, an agreement made by one person with another to pay money to such third person, nevertheless, this rule is subject to the limitations and qualifications we have pointed out, making it inapplicable to the case at bar. We are not disposed to extend the doctrine so as to permit the maintenance of an action by a third person against sureties on a bond, where it does not appear that the bond was entered into directly or primarily for the benefit of such third person, or that there was a fixed or ascertainable liability on the part of the obligee to such third person at the time the bond was executed, or that the services and material were furnished by such third person with knowledge of or reliance on the bond. It does not appear from the petition here ■ — and we are confined to its allegations in passing upon the demurrer — that plaintiff even had knowledge of the existence of the bond when it furnished the labor and material to Nick J. Gaspard, or that it relied thereon. Such matters cannot be read into the petition where the rights of sureties are involved.

To repeat, the bond was for the protection of the owner of the building. To entitle plaintiff to sue on this bond, it is not sufficient that there be a showing that a benefit would have inured to it in the performance of its covenants. The persons who furnished labor or material to Nick J. Gaspard, it is true, were indirectly interested in the performance of the covenants in the bond, but if they can maintain an action against the sureties, then an executory contract, under the terms of which one person agrees with another to advance money to the latter with which to pay his debts, could be enforced by any creditor of the person to whom the promise is made. No one would contend for such a doctrine.

In the case of Vrooman v. Turner, 69 New York, 280, in which case the court reviews a number of New York cases bearing upon the rule being considered here, it was held that a mere stranger cannot claim the benefit of a contract between other parties; to entitle a third person to such benefit there must be either a new consideration or some prior right or claim against one of the contracting parties by which he has a legal interest in the performance of the agreement. In the case at bar, plaintiff, at the time of the execution of the bond, so far as the record discloses, had no right or claim against either of the parties to the bond.

Counsel for plaintiff have cited numerous cases outside of Ohio, which, they insist, support their contention here. In a number of these cases the contracts or bonds under which third persons were claiming are different in form and language from the one here. In other cases the facts disclosed by the record are unlike those presented here. In some it appears that the condition in the bond was inserted for the sole and express purpose of protecting all persons who should do work or furnish material, and that such persons did the work and furnished the material relying upon the provisions of the bond. Cases are cited in which a bond is given to a municipality under a statute for the benefit or security of persons not named as obligees, and where the statute expressly or by implication authorizes such persons to sue upon the bond. These cases are not in point here, and it is unnecessary to make further reference to them.

Our attention is directed to the case of American Surety Co. v. Raeder, Assignee, 15 C. C., 47, affirmed by this court, without opinion, 61 Ohio St., 661. In that case, the bond was given by the contractor to the board of education for the building of a school house, and provided for the payment of all just and legal claims for labor performed and material furnished, and it was expressly provided in the bond that the undertaking should be for the use of any laborer or materialman having a just claim, as well as for the board of education. In that case the main question was whether the bond could be enforced in behalf of the laborers and materialmen. Counsel for the surety company contended that the bond was given solely for the protection of the board of education, and inasmuch as the board was under no legal obligation to pay a claim against the contractor for labor and material furnished, and was in no way indebted to the plaintiff in that case, no cause of action arose on the bond in his favor. The circuit court held that it was quite clear, from an examination of the language of the bond, that the parties intended to give a right of action on the bond for unpaid claims of the class of the plaintiff against the contractor. The absence in the bond here of a provision such as appeared in the bond in that case distinguishes the two cases.

In Buffalo Cement Co. v. McNaughton, 90 Hun., 74 (affirmed on opinion of supreme court, 156 N. Y., 702), the court denied the right of recovery even on a bond with a provision similar to the one in American Surety Co. v. Raeder, Assignee, supra, for the protection of material-men, as it did not appear that they knew of the bond and relied on its provisions when they furnished the material. The court used the following language, which is in point here, and applies with more force for the reason that there is no express provision in the bond giving materialmen the right to bring an action in their own names:

“In some of the states of the Union statutes have been passed giving a cause of action in favor of materialmen in such a case as this. A like provision may be found in certain city charters. But these statutes will be found to contain provisions looking to the protection of the sureties in some instances by a short statute of limitations.
“The plaintiff is not aided by any such provision, either in our city charter or by any statute in our state. If the plaintiff is entitled to recover in this case, the bond being a sealed instrument, it would seem to follow that the twenty years’ statute of limitations applies. If so, it would follow that the plaintiff, or any others who may have furnished material or labor upon the sewer, could at any time during that period maintain actions against the sureties to recover anything due them from the contractor. Such actions might have been brought before the completion of the sewer, and the penalty named in the bond exhausted, and the city thereby deprived of the protection which the bond was intended to give to it.”

For the reasons we have given, plaintiff in error did not, in its petition, state facts entitling it to relief against the sureties on the bond, and the circuit court did not err in affirming-the judgment of the common pleas court on the demurrer to the petition, and the judgment of the circuit court is, therefore, affirmed.

Judgment affirmed.

Shauck, Donahue and Wilkin, JJ., concur.

Nichols, C. J., and Johnson, J., dissent.

Wanamaker, J.,

dissenting. I dissent from the judgment and syllabus of this case. Due respect for the majority opinion as well as for the importance of this case requires that I set forth in some detail my reasons for this dissent.

My contention is that the judgment and syllabus in this case are contrary to the authority of modern precedent, contrary to the authority of reason, contrary to the intention of the parties to the bond, contrary to the progressive jurisprudence and the humanitarian spirit of the times.

The majority opinion concedes the doctrine laid down in The American Surety Company of New York v. Raeder, Assignee, et al., 15 C. C., at page 47, which was affirmed without opinion in 61 Ohio St., 661.

The syllabus of the case reads as follows:

“Where, in a contract with a board of education for the building of a school house, the contractor was required to, and did give a bond for the faithful performance of the contract, providing also that he should pay all just and legal claims for labor performed upon, and for material furnished for the work, and also agreeing that the undertaking should be for the use of any laborer or materialman having a just claim as aforesaid, as well as for the board of education, such obligation so far as laborers and materialmen are concerned is not beyond the powers of the board of education, but is valid, and may be enforced against the sureties on such bond by any laborer or materialman who has a legal claim against such contractor for labor performed or material furnished in the erection of the building.”

The bond in that case, among other provisions,' contains the following:

“The condition of this obligation is such, that, whereas, the said Peter J. Black, did, on the 27th day of May, A. D. 1895, enter into the foregoing agreement with said Board of Education, which said agreement is made a part of this bond, the same as though fully set forth herein, now, if the said Peter J. Black, designated as said party ■ of the second part, in the said foregoing agreement, shall well and truly perform all and singular, the stipulations of said agreement by him to be performed, and shall pay all just and legal claims for labor performed upon, and for materials furnished for the work specified in said agree-' ment, the same shall remain in full force and virtue in law; otherwise, then, this obligation shall be void. We hereby agreeing and consenting that this undertaking shall be for the use of any laborer or materialman having a just claim as aforesaid, as well as for said Board of Education!’

The very able and conclusive opinion in this case, by Judge Hale of the circuit court of Cuyahoga county, might well be sufficient to justify this dissent.

The old doctrine that a third party, stranger to the instrument or contract, might not sue under the contract because of there being no “privity” between him and the other parties to the contract, has long been disregarded.

“In most of the states the English doctrine that where a person makes a promise to another for the benefit of' a third person the' latter cannot maintain an action upon it is not recognized to the full extent, but it is held, subject to the qualification hereafter stated, that the action may be maintained. This is now the prevailing doctrine in the United States. This is sometimes based on general principles of law and sometimes, as in the code states, on the provisions of the code of procedure that every action shall be prosecuted ‘in the name of the real party in interest.’ ” 9 Cyc., 377, et seq.

“By the weight of authority the action cannot be maintained merely because the third person will be incidentally benefited by performance of the contract; but he must be a party to the consideration, or the contract must have been entered into for his benefit, and he must have some legal or equitable interest in its performance. If the person for whose benefit a contract is made has either a legal or equitable interest in the performance of the contract, he need, not necessarily be privy to the consideration.” 9 Cyc., 380.

Some of the states, New York for instance, have adhered very closely to the old English rule and have relaxed it only to a very limited degree, while the central and western states’ decisions, as well as our federal decisions, have repudiated the English doctrine almost entirely.

The majority opinion cites with approval the Ohio cases of Crumbaugh v. Kugler, 3 Ohio St., 544; Thompson, Admx., v. Thompson, 4 Ohio St., 333; Bagaley & Co. v. Waters, 7 Ohio St., 359, as announcing the doctrine that a third party can sue only where there is an existing indebtedness.

It must be conceded on all hands that that is not the law to-day in respect to bonds. Bonds generally relate entirely to the future and in no wise to the past. They are given expressly to guarantee the faithful performance of future personal duties, trust duties and official duties, to provide against future defaults and defalcations. And if this be sound doctrine — that an existing indebtedness had to be the basic predicate of the right of a third party to sue — then all such contracts in futuro would be mere nullities so far as third parties are concerned.

Now there is no more reason in principle why there should be an existing indebtedness to support an action by a third party than in case of the first or second party to a contract. Raeder case, supra.

In line with these old cases is also the case of Emmitt v. Brophy, 42 Ohio St., 82, in which again the existing indebtedness is emphasized as an essential qualification of the bond. This last case is cited with approval in the case of C., H. & D. Rd. Co. v. Bank, 54 Ohio St., 60.

Great emphasis is laid upon this last case by the majority, and Judge Spear’s opinion is specially commended. The syllabus in that case reads as follows:

“An action cannot be maintained against a bank by the holders of a check for refusal to pay it unless the check has been accepted, although there stands to the credit of the drawer on the books of the bank a sum more than sufficient to meet the check.”

This syllabus is absolutely without any relevancy to the case at bar, and I further contend .and maintain that it is not sound doctrine as applied to existing commercial transactions with a modern-day bank, in which all checking accounts are expressly made subject to the payment of all checks issued, not only upon the bank by the depositor in his own favor but issued in favor of third parties, so long as the bank has the funds with which to pay. This agrees with the progressive business spirit of the times. Certainly the owner, holder or payee of the check is the real party in interest, and I cannot believe that such a decision would receive the sanction of this court in the year 1914. Who is the “real party in interest” if not the payee of the check?

Judge Spear,- in that opinion, uses this language: “Nowhere is it held that the obligation will attach in favor of future creditors not named and not known, and as to amounts not specified or then ascertainable, to the extent of giving to such creditors a right of action on the contract.”

And yet this very court in affirming the Raeder case, supra, four years later, repudiated the foregoing doctrine that third parties not named could bring suit and for an amount not then ascertainable.'

Now it must be conceded that the intention of the parties to be determined from what they have said and done shall be the pole-star in interpreting all written instruments, whether simple contracts, checks, bonds, and even statutes and constitutions.- - The majority opinion is strangely silent on the question of what was the intention of the parties to the bond.

The intention in the Raeder case, supra, is manifest from the express terms of the contract, and that, too, without the aid of the last three lines of that bond.' Is the intention of the parties not equally manifest from the terms of the bond in the case at bar?

The part' of the bond pertinent to this inquiry’ is as follows:

“The - condition of this obligation is such that whereas the said N. J. Gaspard on the 17th day of Aug., A. D. 1909, entered into a written agreement' with the said F. Zimmerman Realty Co., whereby-he contracted to provide all the materials and-perform all thé work for the erection and completion of the carpenter work, wooden framing, frames, sash, doors, finish, flooring, roofing, sheet metal work, marble and mosaic, mantel and tile work, glass and glazing, rough and finished hardware for a three-story brick apartment building to be erected on the northeast, corner of E. 86th street and Birchdale avenue, Cleveland, O., and to furnish all tools, implements and cartage thereto as shown by drawings and specifications by architect, G. B. Bohm, and whereas said contract further provided as follows:
“ ‘As a condition of this contract to furnish the owner a satisfactory surety bond as agreed in the sum of six thousand dollars ($6,000.00), to guarantee the completion of the work comprehended in this agreement, and to further guarantee the payment of any claims there may be for the payment of material and labor required in the erection of this building/ and
“Whereas, in lieu of a surety bond, it is agreed between the said parties that said N. J. Gaspard may furnish a bond signed by individuals.
“Now, therefore, if the said N. J. Gaspard shall well and truly perform all the terms and conditions contained in said contract and complete said work as therein provided and pay or cause to be paid all claims contracted in reference thereto for material and labor, then the above obligation to be void; otherwise the same shall remain in full force and virtue in law.”

Now it is admitted that a bond shall be construed strictly, but that strict construction must likewise be a just and reasonable construction, and must accord with the intention of the parties. It is not limited to the letter of the bond as therein written, but what is necessarily implied in the bond is as much a part of it as what is expressly written in the bond.

In the second paragraph of the bond quoted above, suppose we add a parenthesis so that the italicized part will read as follows: “And to further guarantee the payment of any claims there niay be for the payment of material and labor required in the erection of this building (to whomsoever shall furnish such material and labor in accordánce with the contract)”; and the same parenthesis in the last paragraph of the bond quoted, “to pay or cause to be paid all claims con-, tracted in reference thereto for material and labor (to whomsoever shall furnish such material or labor in'accordance with the contract).”

Why are these parenthetical parts not as much a part of the bond as if they were written in the bond? All parties must have so understood it, because it is so obviously and necessarily implied.

' If now they are a part of this bond, how then-is this case distinguishable in principle from the Raeder case, supra, which has been recognized as the law by this court?

Indeed, in order in anywise to justify the construction' placed upon this bond by the majority of this court, something additional needs to be read into the bond, else this language of the bond means nothing, accomplishes nothing, obligates nobody;

The language that must of necessity be read into this bond is substantially this parenthesis: “And to further guarantee the payment of any claims there may be for the payment of material and labor required in the erection of this building (provided the owner of the building has been compelled to make previous payment, or the .materialmen and laboring men have filed mechanics’ liens upon the building, for which the owner would be liable).” So that it turns out that the majority opinion does not adhere to the strict letter of the bond but reads into it something that limits and qualifies the language used, so as to destroy the protection evidently to be fúrnished to the subcontractors, materialmen and laboring men in the erection of the building.

Returning again to the particular bond in this case, it will be noticed that the bond itself expressly mentions “sheet-metal work” What for? Was it not intended thereby to specially guarantee under this bond the payment for all sheet-metal work? And who furnished the sheet-metal work, the owner of the building or the plaintiff subcontractor? Manifestly the payment must be made to the party who furnished the work and material.

Again, the language of the bond in the second paragraph is “[1] to guarantee the completion of the work comprehended in this agreement, and [2] to further guarantee the payment of any claims there may be for the payment of material and labor required..in the erection of this building.”

Now, the syllabus of this case, which seeks to justify the judgment, contains this language: “That the bond * * * is for the protection of the owner of the building, and an action on the bond against the sureties thereon cannot be maintained by a company [subcontractor] for the payment of claims against the contractor,” etc.

Of course, I admit that it is for the protection of the owner of the building, but I deny that it is exclusively for his protection. The language just quoted following [1] shows that it was to guarantee the completion of the contract, and [2] to guarantee the payment of claims for material- and labor required in the erection of this building.

What I claim is that while this is for the protection of the owner primarily, it is also for the protection of all laborers, materialmen and subcontractors secondarily, who have to do with “erection of this building.” The course of reasoning following in the opinion justifies, yes demands, the reading of the word “exclusively” after the word “is,” so that the syllabus would read “is exclusively for the protection of the owner of the building.”

Let us analyze this language of the bond from another angle:

“And to further guarantee the payment” — not to the owner certainly, for on completion of the contract the owner was to pay and not to be paid.
“Of any claims” — claims of whom? Not the owner, because he hadn’t any, but the laborers, subcontractors and materialmen. Again, note the broad, comprehensive scope of the words “any claim,” which would include, of course, accounts, notes, liens, etc.
“There may be for the payment of material and labor” — past or future, which; and for “material and labor” — who furnished it, the owner or third parties ?
“Required in the erection of this building”— this is as broad in scope as words can be.

■After assembling these separate italicized phrases and clauses beginning these several paragraphs, ask yourself the question, If it was not intended to include the claims of subcontractors, laborers and materialmen, pray what was all this language used for anyhow?

The construction of the majority utterly disregards and destroys all these words that appear in two separate paragraphs of the bond in substantially the same style of speech. The old elementary rule of construction that the court shall give effect if possible to all parts of the contract is clearly and radically violated.

Now every owner of a building in contemplation of erection feels at least a moral obligation to have all laborers, materialmen and subcontractors fully paid. He does not take any pleasure in having some one pass his building and sáy: “I put one thousand dollars’ worth of labor or one thousand dollars’ worth of material into that building and it never was paid for.”

Men in this age are trying to get ¿way from the old, narrow, selfish idea of every man for himself, and upon the contrary the individual does feel that he is, in some sense, “his brother’s keeper.” It was the'most natural thing for the owner of this building to undertake to provide by a proper bond that all claims “for material and labor required in the erection of this building” should be paid for under the bond.

The policy of our federal laws in this respect has been ably discussed and determined in Hill v. American Surety Co., 200 U. S., 197, decided January 2, 1906. The syllabus reads as follows:

“The act of August 13, 1894, 28 Stat., 278, was issued, as the title declares, for the protection of persons furnishing materials and labor for the construction of public works, and nothing in the statute, or in the bond therein authorized, limits the right of recovery to those furnishing material' or labor to the contractor directly; but all persons supplying the contractor with labor or materials in the prosecution of the work are to be protected.
“The rule which permits a surety to stand upon his strict legal rights does not prevent a construction of the bond with a view to determining the fair scope and meaning of the contract.
“Such statutes are to be liberally interpreted and not to be literally construed so as to defeat the purpose of the legislature.
“Under the circumstances of this case, a materialman, who had complied with the provisions of the statutes as to filing notice, was entitled to recover from the surety company on a bond given under the statute, although the materials were furnished to a subcontractor and not directly to the contractor.”

Judge Day in his opinion uses this language: “The courts of this country have generally given to statutes intending to secure to those furnishing labor and supplies for the construction of buildings a liberal interpretation, with a view of effecting their purpose to require payment to those zvho have contributed by their labor or material to the erection of buildings to be owned and enjoyed by those who profit by the contribution of such labor and materials. * * * And the rule which permits a surety to stand upon his strict legal rights, when applicable, does not prevent a construction of the bond with a view to determining the fair scope and meaning of the contract in the light of the language used and the circumstances- surrounding the parties.”

If there should be a liberal construction of a statute to effect its purpose, why should there not be at least a fair and reasonable construction of a contract or of a bond with a view of effecting its purpose?

Judge Day goes on in the following language: “Statutes are not to be so literally construed as to defeat the purpose of the legislature. ‘A thing which is within the intention of the makers of the statute, is as much within the statute, as if it were within the letter.’ ”

By the same doctrine, a thing which is clearly implied in the contract must be as much a part of the contract as if it were within the letter or words of the contract, all of which I hold justifies reading into the bond the parenthetical words heretofore referred to.

“The obligation is ho make full payments to all persons supplying it with labor or materials in the prosecution of the work provided for in said contract/ This language, read in the light of the statute, looks to the protection of those who supply the labor or materials provided for in the contract, and not to the particular contract or engagement under which labor or materials were supplied. If the contractor sees fit to let the work to a subcontractor, who employs labor and buys materials which are used to carry out and fulfill the engagement of the original contract to construct a public building, he is thereby supplied with the materials and labor for the fulfillment of his engagement as effectually as he would have been had he directly hired the labor or bought the materials.”

While there is a statute governing this matter in national public work, it is equally the policy in the several states, not merely as to public work but as to private work, and specially where bonds are executed for the faithful performance of such work.

A more recent case by the supreme court of the United States, in which the same judge, Judge Day, rendered the opinion, was decided December 1, 1913, under the title of United States Fidelity & Guaranty Co. v. United States, for the benefit of Bartlett, 231 U. S., 237.

This was a suit on a bond which included this provision, i. e., that the contractor or contractors would “promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract.”

In the contract it was provided that the contractor should be held responsible for and pay all liabilities incurred in the prosecution of the work for labor and material. The contractor, Donavin, executed the bond. There was no existing indebtedness, and Bartlett’s name was not mentioned in the bond. The lower courts held with Bartlett. The supreme court affirmed their judgment.

The New York decisions, of course, support the doctrine announced and defended in the majority opinion, but Iowa, Nebraska, Michigan, Minnesota and some other central and western states, together with the federal decisions, strongly support the doctrine here contended for. And why should we virtually overrule the Raeder case? There is now no occasion for any backward step. Between the strict technical interpretation of the eighteenth century that severely followed the letter that killeth and the liberal progressive interpretation of the twentieth century that follows the spirit and maketh alive, giving wages to labor and payment to subcontractors and -materialmen, I prefer the latter.  