ENID CONCRETE PIPE & STONE CO. v. MANN

ENID CONCRETE PIPE & STONE CO. v. MANN
1935 OK 1008
50 P.2d 307
174 Okla. 282
Case Number: 24346
Decided: 10/22/1935
Supreme Court of Oklahoma

ENID CONCRETE PIPE & STONE CO.
v.
MANN, Adm'x, et al.

Syllabus

¶0 1. Principal and Surety--Rules of Construction of Contract of Suretyship.
A contract of suretyship should be interpreted and the intelligible meaning of its language ascertained. It will then be construed and applied strictly in favor of the surety, and without allowance of an implication against him; but this rule in no way interferes with the use of the ordinary tests by. which the actual meaning and intention of the contracting parties are determined, and the same canons of interpretation which apply in the interpretation of other contracts should be applied in suretyship contracts.
2. Bonds -Construction of Statutory Bond.
Statutory bond must be construed and enforced in terms of statute.
3. Same--Superadded Stipulations in Bond Disregarded.
Superadded stipulations in statutory bond must be disregarded and true intent of parties enforced.

Appeal from District Court, Oklahoma County; Tom G. Chambers, Judge.

Action by the Enid Concrete Pipe & Stone Company against the New York Casualty Company and Florence M. Mann, administratrix. Judgment for defendants, and plaintiff appeals. Reversed in part and affirmed in part.

G. A. Paul, Shirk, Danner & Phelps, and Charles E. Earnhart, for plaintiff in error.
Tomerlin, Chandler & Shelton and Elmer L. Fulton, for defendants in error.

RILEY, J.

¶1 The principal question involved in this case as between the plaintiff and the New York Casualty Company of New York is identical with that presented in the case of New York Casualty Company of N. Y. v. Wallace & Tiernan, 174 Okla. 278, 50 P.2d 176.

¶2 Therein it was held that the superadded stipulations limiting the liability of a surety on a bond required by section 10983, O. S. 1931, to indebtedness incurred for labor and material which might become the basis of liens against property and the real estate upon which it is situated, all being property of the city, must be disregarded in a suit by a materialman on the bond.

¶3 The law as announced in that case must govern in this case. It follows that the trial court erred in sustaining the demurrer to plaintiff's evidence.

¶4 The separate demurrer of defendant Florence M. Mann, as administratrix of the estate of 3. D. Mann, deceased, to the evidence of plaintiff was well taken, but for a different reason. There may have been a liability of J. D. Mann in his lifetime on the bond, or a liability against him on his contract of purchase of the material involved, without any bond. But in order to maintain an action against an estate, the holder of a claim must first present it to the executor or administrator. Section 1242, C. O. S. 1921, sec. 1241, O. S. 1931; Bilby v. Hart-Parr Co., 102 Okla. 53, 226 P. 360.

¶5 The judgment as to the New York Casualty Company is reversed and the cause is remanded for a new trial. The judgment as to Florence M. Mann, administratrix, is affirmed.