
    GOLD BROS. BRICK COMPANY, Appellant, v. GRANT COUNTY et al (GRANT COUNTY, Respondent).
    (168 N. W. 855).
    (File No. 4268.
    Opinion filed July 22, 1918.
    Rehearing denied September 6, 1918).
    1. Limitations — Materialmen re Courthouse Construction — -Contractor’s Bond Wanting — Statutory Claims — Statute Construed.
    In a suit by materialmen to. recover, under Laws 19 09, Cb. 245, for the value of building material furnished for construction of a courthouse; the contractor not having furnished bond for payment for such material, as required by Sec. 1 of said act; the material having been delivered in the latter part of 1915, the last of it being accepted by construction company for such use in January, 1916, suit having been ¡begun in January, 1917; held, that under Sec. 3 of said act, limiting time for suit upon such liability to 90 days “from the acceptance of the work, for which the same shall be claimed,” the word “work” in said section comprehends and embraces tbe words “erection, alteration, repair, or improvement” found in Sec. 2 providing that upon failure of the public corporation to require such bond,, it shall be liable to pay for material entering into “the erection,” etc.; that it refers to the job to be performed under the building contract, and note the circumstance of the delivery and acceptance of the particular material furnished by plaintiff; and, suit having been commenced prior to completion of the job, it was not barred by the statute; it further appearing that, pursuant to the building contract, the county, upon default of the contractor, completed the job.
    2. Contracts — Quantum Meruit — Materialmen’s Claim Versus County —Suit to Recover, Whether on Contract, or Statutory Liability —Damages, Measure Of.
    An action, under Laws 1909, Ch. 245, providing that if a public corporation, under ia building contract fails to require contractor to furnish bond conditioned for payment for labor and material entering into construction of the building, it shall 'be liable to pay for such material, is not one upon contract, nor upon quantum meruit; but is one based upon statutory liability created by county’s failure to require the proper bond; although the value of the labor, etc., measures amount of plaintiff’s recovery.
    3. Statute-Materialman’s Claim Against Public Corporation. — “Action” — Statute Construed.
    Sec. 3, Laws 1909 Ch. 245, relating to recovery against a public corporation for materials furnished a contractor in construction of a building, provides that “an action brought under any of the provisions of this act shall be commenced within 90 days from acceptance of the work for which the same shall be claimed.” Held, that the words “for which the same shall be claimed” refer to the word “action” in said section;' the claim or cause of action against the public corporation being one created -by Sec. 2, to-wit; the liability ‘ to claim for labor and material entering into the building; so that the clause above quoted means “for which a cause of action and liability under Sec. 2 shall be claimed.”
    Appeal1 from Circuit Court, Grant County. Hon. Thomas D. Bouck, Judge.
    Action toy Gold' Bros. Bri’ck Company, against Grant County, South Dakota, and others, to recover for building material furnished toy plaintiff to defendant county’s contractor in construction of a courthouse. From a judgment dismissing the action, and from an order ‘denying a new trial; plaintiff appeals.
    Reversed, and remanded with directions to enter judgment -for plaintiff.
    
      B. L. Grantham, Thad L. Fuller, and Howard G. Fuller, for Appellant.
    
      Robert D. Jones, State’s Attorney, (Case & Case, and George S. Rix, of counsel), for Respondent.
    (i) To point one of the opinion, Appellant cited;
    C. Grandahl Dumber Company vs. Weinsveig, (Cal.) 117 Pac. 954; and submitted that:
    The -legislature meant “work” too mean ninety days from the time the contractor “aibandonedi the work.” The word -must toe -construed to include tooth labor and material, and it can only toe given such, a construction if it means the improvement or public work which is the subject of the contract.
    Respondent submitted that:
    The word “work” in this statute, applies to appellant, who simply furnished -material; therefore- -when-' its 'cause o-f action accrued the work, so 'far as it was concerned', 'wiasi accepted!; -and cited':
    E'agle Mfg. Oo. vs. Gisty^ of Dav-enpicad, Iowa, 3-8 L. R. A. 480; iCaitl’in vs.. D'ou-gks, 33 Federal, 569. ■ - -
   GATES, J.

Gr-a-nt County .-contracted -with -a con-structi-on- company for th-e ere'cti-o-ni o-f -a courthouse. The plaintiff 'has an unpaid bill o-f ,$1,162.33 for building material -delivered up'o-n th-e -courthouse grounds to the 'contractor, and which entered- into the construction of the building. The bond furnished' by tire contractor did not -contain tide 'clause providing fo'r 'the payment of all labor and material that entered into tire erection iasi required by section 1, c. 245, Lqiws 1909. In March, 1916, when the bui-ldi-nig -was -partially -completed', the -contractor abandoned- the contract. The county t-o'ok -over "the job, and at -the time of the trial of- this 'action it was nearing oampieltion. 'Section 2 of. said1 -act provides a liability on the -part of the county f'o-r -its failure tloi require the proper bond This action 'was brought ito enforce such liability against the county. Section 3 of said act limits the time -within which an action t-o recover upon such liability shall foe begun. The decision in thi-s case 'depends solely upon the meaning of said 'section 3.' The Ibuildbui-Ming material furnished ibyr- plaintiff iw-as delivered1 In- the latter part -of the year- 1915, the last of -it being received .and accepted by the coosibructiion -company -at 'sia-id court foo-us-e ground's for use in said building on January 4, -1916. • This 'action was -begun -o-n January 8, 1917. The trial -count concluded that the time of time acceptance of the material by the -contractor was the beginning of the 90-clay period- mentioned in section 3 of said act, and because the adtioni .was niot begun -within said period1 entered' judgment -dismissing the -action. From such judgment and an- order -denying a nelw trial, plaintiff appeals.

The language of -section 3 of said act is:

“That an action brought under -any of the provisions of this a-ct -shall' be commenced within ninety -days from 'the -acceptance of the wlork for -which the same shall be cl-aimed1.”

On the part of the respondent it is -claimed, -as fo-und by the trial count, that the acceptance by the contractor of the particular material upon- .which the -claim- -is- based is-the .acceptance referred to in said section, -or that in--any event ‘-the taking over of the job ■by the county amounted to an acceptance of the 'building by the county.

Appellant-makes two contentions: First, that the word “work” in said section means “labor,” so that it would have -us hol'd that an action upon .the county’s liability for the value of labor that ‘entered -into the erection must be begun within, go day®, froto' the date of acceptance, while an -action1 upon its. liability for material need only be begun within six years after the cause of action accrued. A mere reading of the first three •sections' of the act shows that such contention is unwarranted. Appellant alternatively contends that the -word “work” is -used' as a synonym for the improvement icir .public work which is the subject of the contract. Respondent’s counsel contend that itbe words “flor which the same shall be .claimed” negative this construction' because they say those words “clearly show .that tire recovery can be had only for -that claim and that the action for such recovery shall be begun within 90 days from the ‘acceptance of the wlork,’ which in this instance would be Construed to be the material for which the recovery shall be claimed.” Respondent's counsel mis® the point. This action is not one upon contract, nor upon quantum meruit a® ordinarily unde nstcieid, nor is it one to enforce .a.mechanic’s lien. It is ‘an action based upon ;a statutory liability created! by the failure of the county to require and secure tire proper bond, although of .course 'the value of the labor or material .measures the amount of plaintiff’® recovery. Handelan v. Smee Sch. Dist., 38 S. D. 29, 159 N. W. 888. In Slagle v. Elk Point Ind. Con. Sch. Dist., 40. S. D. p. 73, 166 N. W. 234, we said:

“This statute creates a liability entirely distinct from any liability of the .district which might arise under a valid contract.”

'When ,we consider that the county is not immediately concerned! with the relations between the principal contractor and- subcontractors, >and that the declared purpose of the act is to provide a remedy to laborers and materialmen who might otherwise be deprived! loif a remedy, and that none of the parties to the principal contract or subcontracts may be in position to know the outcome of the job within 90 days from the acceptance of a particular piece of work or material by the principal contractor, and that it i® the ultimate outcome that is clearly aimed! at in the act, fit is not difficult to-.arrive at the meaning of said section three.' It is clear to us that the word “work” is used ¡to comprehend and' embrace the word's “erection, alteration, repair, or improvement” found' in tire preceding section, and that it was so1 used to obviate the necessity of their repetition' in section three. Or, in- other words, it refers to the job to be performed under the contract between tire public corporation and) the contractor under and for whiolm tire laborer or nrateri'alimian furnished his 'labor or ware's. The word is commonly so 'Used in reference to building contracts-, and indeed is- so used repeatedly in- the principal contract herein. For instance, if the county had entered1 into three principal- contracts, lane for the foundation, one for the structure, and one for the heating' and plumbing, its liability to laborers or material-men under section 2 of sai-d act would! begin to run upon the ac-ceptance of the 'performance of the principal contract under which the laborer or material-man claimed a liability. Such- -was the theory upon which the decisión was reached1 in Plumbing Supply Co. v. Board of Ed., 32 S. D. 129, 142 N. W. 260. In the six consolidated cases- under the title Slagle v. Elk Point Con. Ind. S'ch. Disk, supra, tlhie- claim1 was made that the 'material's were accepted by the school'- -district within, the meaning of said1 section 3, because of the approval and payment (as in the -case before u©) of the architect’s 'estimialtes, or that in any event the talcing ¡over of the abandoned structure by the school district for completion' by it amounted to such acceptance. These questions were thoroughly briefed and discussed by both side's in those ca'sies. There the material was received and accepted by the principal contractor and' architect’s estimates made -and allowed ■prior tb the middle ofi December, 1914, when the contractor 'abandoned th-e wlcirk. Thereupon the school district to'ok 'charge of the wbrk and -completed the building .about September 1, 1915, and those actions were begun on, varying dates from September 14, 1915, to October 7, 1915, all of which dates were more than 90 days later than the -payment of the architedt’s- estimates1 and later than the taking over of the abandoned structure by the school board. Although no. mention of these -points was made in the opinion in those case's, that -decision necessarily -committed this court ■to the construction of statute which 'we now -give it, because a contrary 'construction' in, that case Would necessarily have- produced’ a contrary result from that at which, we there -arrived'. In this case, as is usual in building contracts, there was a provision that the county might .complete the job in. case of its abandonment by the contractor and tbaft when the -work -was wholly finished' ithe contractor should p'ay to the county the excess of the cost of completiidn over the balance due upon the contract, and1 that if there was no excess the county should pay .the balance to the contractor. It would1 be unreasonable to hold that the taking over of .the job by the County flor the purpose of completioln was an .acceptance of the job. The only difference between those case© and this, and we think it is an immaterial difference, is (that .there the actions were begun within 90 days after the job was completed' by the 'school district, while here the action was begun prior to its completion.

Respondent has cited a number of authorities- .to the effect thiat the abandonment of work upon a building is deemed to be a completion of the 'building for the purpose of filing ,a mechanic's, lien. We think such a rule is entirely inapplicable to the questions before Us.

The words in1 said section 3 “for which the .-same shall be claimed” refer to the wlolrd “adbion” in ithe first line of said section. As above suggested, the claim or cause of action against the County is that created by section 2 of the act, towit, the liability to pay for all labor andl materials that entered into .the building because of its failure to secure the proper bond. So that the words “far which the same 'shall1 be 'claimed'” mean “for which a cause of 'action for liability under section 2 .shall :be claimed.”

Inasmuch as the findings of fact show that plaintiff is entitled tc recover in this 'adbion- under our .interpretation lolf the provisions of said -act the judgment andl order appealed from are reversed, and the cause remanded to the trial' court, with1, directions, to enter judgment for the plaintiff for the amount found1 'due to ;if, with interest 'and costs.  