
    No. 629
    ROYAL INDEM. CO v. DAY & MADDOCK CO.
    No. 19105.
    Supreme Court
    On motion to certify. Dock.
    April 25, 1925;
    3 Abs. 278.
    1065. PUBLIC BUILDINGS—Are claims for the rental, repair and hauling of machinery, “labor and materials” within meaning of 2365-1 and 2365-2 GC?
    Attorneys—Baker, Hostetler & Sidlo for Indemnity Co; Thompson, Hiñe & Flory for Day & Maddock Co.; all of Cleveland.
   On Dec. 13, 1922 one, J. F. Hohloch entered into a contract with the Cleveland Board of Education for the erection of a school building and furnished bond with the Royal Indemnity Co. as surety, according to 2365-1 GC, et seq. Hohloch subsequently leased from the Day & Maddock Co. a concrete mixer, hoisting machine and certain other machinery for use in the erection, at an agreed rental per month and Hohloch further agreed to pay the necessary cost of repair and of cartage tó deliver and return the machinery.

Hohloch defaulted on his contract with the Board of Education. The Day & Maddock Co. filed a statement of claim in the Cleveland Municipal Court to recover from the Indemnity Co. the rentals, repairs and drayage of the machinery.

The demurrer of the Indemnity Co. was sustained and the case was dismissed. Error was prosecuted and the Court of Appeals reversed the lower court and decided in favor of the Day & Maddock Co.

In bringing the case to the Supreme Court, Section 2365-1 GC. providing for the condition of the bond is set forth: “for payment by the contractors and by all subcontractors of all indebtedness which may accrue to any person, firm or corporation, on account of any labor furnished in the construction, erection, alteration or repair of such building works or improvements”; and the form of the bond under 2365-4 GC. “shall pay all lawful claims of subcontractors, material men and laborers for labor performed, materials furnished, etc. - -.”

The Indemnity Co. claims that:

1. It is customarily assumed that the contractor will furnish his own tools and necessary implements with which to perform the work.

2. Sections 2365-1 and 2 GC. were enacted to protect those furnishing labor and material on a public job, since they had no right to a lien.

3. There must exist a privity between the Board of Education and the Day & Mad-dock Co. before that third party can have a right of action upon the promise in the bond. It is here contended that the furnishing alone of machinery to contractor, which machinery forms no part of improvement being constructed, shows no privity between person furnishing such machinery and the promi-see, (Bd. of Education) in the public contract.  