
    No. 391
    SO. SURETY CO. v. CHAMBERS et al
    No. 19656.
    Supreme Court
    On motion to certify.
    Dock. March 3, 1926;
    4 Abs. 176.
    165. BONDS — May a court enlarge a common law bond, given to protect a specified obliger, into a statutory bond which increases the surety’s obligation and makes it liable to third persons not privy to the contract of suretyship nor contemplated by its language?
    Attorneys — Baker, Hostetler & Sidlo, for Surety Co.; Ralph Sanborn, for defts. All of Cleveland.
   On June 5, 1922, the Complete Construction Company entered into a contract with the board of education of the city of West Park, for the erection of a school building; and on June 19, 1922 furnished a bond with plaintiff-in-error, Southern Surety Company, as surety. The sole condition of the bond is:

“Now, therefore, the condition of the foregoing obligation is such that if the said principal shall well and truly indemnify and save harmless the said obligee from any pecuniary loss resulting from a breach of any of the terms, covenants and conditions of the said contract on the part of the said principal to be performed, then this obligation shall be void; otherwise to remain in full force and effect in law.”

The Construction Co. went forward with the construction of the building until November 7, 1922, when it defaulted on its contract. In January, 1923, the city of West Park was annexed to the city of Cleveland, and the board of education of Cleveland became successor of the board of education of West Park. Thereafter, the Cleveland board of education caused the school building to be completed and formally accepted the building on August 16, 1924.

Defendants-in-error furnished labor and material to the Complete Construction Co. for the erection of the school building. The defendant-in-error, Frank Chambers, filed suit against the Southern Surety Co. in the Cleveland Municipal Court. A demurrer to his petition was sustained and to this ruling Chambers prosecuted error to the Court of Appeals of Cuyahoga County.

The defendant-in-error, The Bradwell Avenue Lumber Company, The Branagan Roofing Company and The Republic Structural Iron Works Company filed separate actions in the Cuyahoga Common Pleas against the Southern Surety Company. The Board of Education of the City of Cleveland also filed in the Cuyahoga County Common Pleas Court an action against the Southern Surety Company to recover the excess amount paid by the Board of Education to complete the school building. These four cases were consolidated for the purpose of hearing in the Cuyahoga County Common Pleas Court. The Surety Company compromised with the Board of Education of the City of Cleveland and that case was marked on the Court docket “Settled and dismissed at Defendant’s cost.”

At the hearing of the consolidated cases above referred to, the Cuyahoga Common Pleas found for the defendant surety company and rendered judgment for it. The several plaintiffs then prosecuted error to the Court of Appeals. On motion, the Appeals consolidated these cases from the Common Pleas with the Chambers case for the purpose of hearing. On February 23, 1926, the Court of Appeals reversed the judgment of the Common Pleas and of the Municipal Court and rendered judgment in favor of Frank Chambers, the Bradwell Avenue Lumber Co., the Branagan Roofing Co., the Republic Structural Iron Works Co., and against the Surety Company.

The Surety Co., in the Supreme Court, contends :

1. It is a fundamental principle of law that a Court will not make a contract for parties even though the Court is of opinion that a different contract under the circumstances should have been made.

2. A Court cannot “read into” a bond, provisions which greatly extend the scope of the liability and make it an entirely different instrument than the parties deliberately agreed upon.

3. A Court will declare a contract void, if unlawful, but will not attempt to make a new and lawful contract.  