
    LION BONDING & SURETY CO. v. TRUSSED CONCRETE STEEL CO. OF TEXAS et al.
    (No. 5905.)
    (Court of Civil Appeals of Texas. Austin.
    April 17, 1918.
    Correction of Findings of Fact and Judgment, May 1, 1918.)
    1. Munich?At Corporations &wkey;>347(2) — Contractor's Bond — “Liens” — Liability ox Surety.
    Despite Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6394f-6394j, where bridge contractor’s bond was conditioned on completion according to specifications and delivery to city free from all liens, which completion was had and delivery free from liens made to city because no one can have a lien on public works, surety was not liable to materialmen; “liens” having its usual signification, and not meaning “claims.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Lien.l
    2. Contracts <&wkey;167 — Construction.
    The law must be read into every contract.
    3. Evidence <&wkey;S7 — Presumptions—Expect— Performance ox Duty by Officers.
    The presumption that public officers do their duty prevails, in the absence of proof, and not against it.
    • Appeal from District Court, Bell County; F. M. Spann, Judge.
    Suit 'by the Trussed Concrete Steel Company of Texas and others against the Hess & Skinner Engineering Company and the Dion Bonding & Surety Company. From Judgment for plaintiffs, the Bonding & Surety Company appeals.
    Reversed and rendered in part, and in part affirmed.
    A. B. Wilson, of Houston, and M. E. Mon-teith, of Belton, for appellant. Thompson, Knight, Baker & Harris and Alex. F. Weis-berg, all of Dallas, and Sam D. Ware, of Belton, for appellees.
   Findings of Pact.

JENKINS, J.

Tlie city of Belton, a municipal corporation under the laws of this state, entered into a contract with Hess & Skinner Engineering Company for the construction of two bridges in said city, in accordance with certain specifications, for which it agreed to pay a certain price. The contractor was to furnish all material and labor. In so far as said contract related to a bond to be executed by the contractor, it was as follows:

“Said contractor agrees to execute a good and sufficient bond, acceptable by the said city, conditioned upon the faithful performance of this contract by the said contractor, said bond to be in the sum of twenty-one thousand ($21,000.00)-dollars, and payable to Neal Bassell, mayor of the said city of Belton, at Belton, Texas. * * ⅜ saj<j contractor shall so execute the bond for faithful performance of this contract as to also cover guarantee that all labor and ma-terialmen’s liens shall be paid by the said contractor.”

The contractor executed a bond in the amount and payable to the party recited in the contract, which, in so far as it bears upon the condition of same, is as follows:

“Whereas, said principal has entered into a certain written contract, a copy of which is hereto attached and made a part hereof, bearing date the 20th day of May, 1914, for the construction and completion of two reinforced concrete bridges in the city of Belton, Texas: Now, therefore, the condition of the foregoing is such that, if the said principal shall well, truly, and faithfully comply with all the terms, covenants, and conditions of said contract on said principal’s part to be kept and performed, according to the tenor thereof, then this obligation is to be null and void; otherwise, to be and remain in full force and virtue in law.”

The contractor became indebted to appel-lees in the amount for which judgment was rendered for material used in the construction of said bridges, for which payment has not been made. The case was tried before the court without a jury, and judgment was rendered against the contractor for the amount found to be due, and also against the bondsman, the appellant herein, for the sum of $155.55. The court filed its findings of fact and conclusions of law. Error is assigned upon the court’s conclusion of law that the appellant was liable to appellees by reason of having executed said bond.

'Opinion.

Upon the authority of Campbell v. Smith, 148 S. W. 1195, Glass Co-, v. Iron Co., 147 S. W. 620, Smith v. Bowman, 32 Utah, 33, 88 Pac. 687, 9 L. K. A. (N. S.) 889, and authorities cited in the notes of the last above mentioned case, we have reached the conclusion that this case should be reversed and rendered in favor of appellant. -As was stated in reference to the bond in Glass Co. v. Iron Co., supra, 147 S. W. 623, the bond herein sued upon has two conditions. One is that the bridges should be completed according to their specifications, and the other that they should be delivered to the city of Belton free from all liens. Both conditions were complied with.

Appellees insist that, inasmuch as no one could have a lien on public works, the latter clause, if construed to mean what it says, is meaningless, and cite in support of their contention, Snider v. Greer, 51 Ind. App. 348, 96 N. E. 960. In that case the court so held in reference to a clause in favor of lienors; the law in Indiana being, as here, that no one was allowed a lien oh public works. The conclusion reached by the court in that case was:

“The 'bond must therefore be treated the same as though such words had been omitted.”

This application, which we think is correct,. is against appellees, for, if the clause with’ reference to lienors be omitted, the only obligation which appellant assumed was that the work should be done in the manner and time required by the. contract. In the case last above cited, recovery upon the bond was permitted, for the reason that, after rejecting the clause held to be meaningless, there still remained, in addition to the clause, that the contractor “shall in all things stand to, and abide by, and well and truly keep and perform, the covenants, conditions, and agreements of the above-mentioned contract, and shall duly and promptly pay and discharge all indebtedness that may be incurred by the said Edward S. Petra [the contractor] in carrying out the said contract.” No such clause is contained in the bond in the instant case. In fact, the contention of appellees is not that we should strike out the meaningless clause, but tliat we change the same so as to make “all labor and materialmen’s liens” read "all labor and materialmen’s claims.”

Appellees cite various passages from R. O. L. to the effect that the intention of the parties must be ascertained and enforced, and that rules of construction are to be resorted to in order to ascertain such intention. These rules are to be -resorted to when the language used admits of different meaning, but not otherwise. That excellent work states:

“This statement of the general rule [that the intention of the parties must prevail] necessarily implies that explicit and positive language, importing a different purpose, cannot be overruled, but must -be given its obvious meaning.” 6 R. C. L. 837.
“Accordingly, it is said that the agreement of the parties is to be ascertained from the plain language used by them, and such agreement is to be enforced, no matter what the intention may have been, and that, where the meaning of a contract is 'plain, another meaning cannot be added by, implication or intendment.” Id. 841.

The word “lien,” both in its ordinary and technical signification, has a fixed and well-understood meaning, and in the absence of fraud, accident, or mistake the parties must be presumed to have intended such meaning, and not a very different thing.

It is true, as asserted by appellees, that the law must be read into every contract. The law relied upon in the instant case is found in Vernon’s Sayles’ Ann. ,Civ. St. arts. 6394f to 6394j. These articles' of the statute made it the duty of the authorities of the city of Belton to require of the contractor a bond for the protection of those who furnished labor and material for the construction of the bridges, and the contract should not have been awarded without such bond. But it was. The presumption that public officers do their duty prevails in the absence of proof, and not against it. The law did not require appellant to execute such a bond, or any bond, unless it voluntarily chose to do so. It cannot be held to a liability that it did not assume, simply, for the reason that it was the duty of the public authorities to have demanded of the contractor a bond covering such liability. Whether or not appellant would have signed such a bond, had it been requested to' do so, we have no means of knowing;' but we do know, from the record herein, that it did not do so.

The bond herein sued on is not the statutory bond required by the articles of the statute above referred to, and the obligor therein is liable on the same only as com mon-law obligation. Jacobs v. Daugherty, 78 Tex. 682, 15 S. W. 160; Bank v. Hazard, 73 Tex. 542, 11 S. W. 626; Reid v. Fernandez, 52 Tex. 379; Jones v. Hays, 27 Tex. 1; Marshall v. Bailey, 27 Tex. 686; Johnson v. Erskine, 9 Tex. 1; Hanks v. Horton, 5 Tex. 103; Hillman v. Mayher, 38 Tex. Civ. App. 377, 85 S. W. 818; Mariany v. Lemaire, 83 S. W, 215.

For the reason stated, the judgment of the trial court against appellant is reversed, and here rendered for appellant. In all other respects the judgment is affirmed.

Reversed and rendered in part, and in part affirmed.

Correction of Findings of Fact and Judg- • ment.

This court having discovered an error in .the findings of fact in the opinion heretofore rendered herein, in that it does not correctly state the judgment of the trial court, the same is here'now on our own motion corrected, so as to show that judgment was rendered by the trial court against the contractor,for the amount alleged to be due, and .against appellant in favor of R. L. Henderson, receiver, for $155.55, in favor of the Trussed Concrete Steel Company for $1,644.-67, and in favor of Trinity Portland Cement Company for $2,384.78.

The judgment is here now reformed, so as to show that thfe judgment of the trial court, in so far as it was against appellant, is reversed and rendered in favor of appellant, but in all other respects it is affirmed. 
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