FULLER v. BROOKS

FULLER v. BROOKS
1926 OK 190
246 P. 369
117 Okla. 252
Case Number: 16035
Decided: 03/02/1926
Supreme Court of Oklahoma

FULLER et al.
v.
BROOKS.

Syllabus

¶0 1. Highways--Highway Contractor's Bond--Liability Unaffected by Assignment of Contract. One who enters into a contract with the Highway Department of the state of Oklahoma to construct a public road and executes a builder's bond pursuant to section 7486, Compiled Statutes 1921, does not destroy the liability of the bond for materials furnished in the course of the construction of the work by assigning the contract for the construction of the project to a third party.
2. Same--Liability for Material Furnished. he builder's bond provided for by section 7486, Compiled Statutes 1921, is liable for all material furnished to the contractor or subcontractor, and used in or consumed in the course of the construction of the project.
3. Partnership--Existence of Relation-- Question for Jury. Whether the plaintiffs in error were partners in the construction of the road prospect, under the contract assigned by the original contractor, was a question of fact for the jury under proper instructions of the court.
4. Highways--Highway Contractor's Bond-- Nonliability for Materials not Consumed. Record examined; held, that the court committed reversible error in allowing recovery on certain items which were not shown to have been entirely consumed in the course of the construction of the road project.

G. A. Paul and A. Gray Gilmer, for plaintiffs in error.
Hummer & Foster and R. E. Simpson, for defendant in error.

STEPHENSON, C.

¶1 The State Highway Department awarded a certain contract to M. R. Ammerman for the construction of a public highway in Okmulgee county. The contractor executed a builder's bond pursuant to section 7486, C. O. S. 1921, conditioned to answer for labor and material used in the construction of the public improvement. The Globe Indemnity Company became a surety for the faithful performance of the conditions of the bond for the contractor. Thereafter M. R. Ammerman assigned the contract for the construction of the highway to Fuller & Company, a partnership. It is contended by the plaintiff that R. D. Farmer and John J. Harden were partners of Fuller & Company in the completion of the project. However, it is denied by the defendants that the latter were partners of the assignees. S. A. Brooks sold gas and oil for use of the trucks operated by the assignee, in transporting material used in the completion of the work. The plaintiff also furnished materials for use in the repairs of the trucks in question. The material so furnished the owners of the trucks was in the nature of repairs to the engine and casings, etc.

¶2 The assignees failed and refused to pay Brooks, who then commenced his action against the parties named for the value of the materials sold to them. The trial of the cause resulted in a judgment in favor of the plaintiff and against the defendants for the sum of about $ 400. The defendants have appealed the cause here for review, and assign several of the proceedings had in the trial of the cause as error for reversal here. The defendants submit the following propositions as error for reversal: (1) That the evidence was insufficient to show that R. D. Farmer and John J. Harden were partners of Fuller & Company. (2) That the act of Ammerman in assigning the contract for the construction of the roadway project to Fuller & Company operated to discharge Ammerman from any obligation to perform the work, and thereby relieved the surety company, who became surety for Ammerman, from any liability on the bond, other than that created by the personal acts of Ammerman. (3) That the plaintiff was not entitled to recover for the gas and oil furnished for the use of the trucks engaged in transporting material, and for materials used in repairs to the trucks.

¶3 It is sufficient to say that there was evidence tending to support the contention of the plaintiff that Farmer and Harden were partners of Fuller & Company in the completion of the public highway. Ammerman and the surety company attempted to escape liability by showing that Ammerman assigned the contract to Fuller & Company, and that the act of assignment operated to relieve Ammerman from any obligation in connection with the performance of the contract. It is the contention of the surety company that as Ammerman was relieved from any obligation to perform the contract, by the act of assigning the same, the surety company was thereby relieved of liability on the bond. This proposition presupposes that the surety company was only bound to guarantee the faithful performance of the contract on the part of Ammerman, if he proceeded with the work.

¶4 The proposition submitted by Ammerman and the surety company amounts to a contention upon their part that Ammerman was not bound by the contract to construct the highway. The contention of Ammerman and the surety company narrows Ammerman's service merely to that of undertaking to contract with some person for the Highway Department to perform the services for that department. Ammerman contends that Fuller & Company and the other defendants were not subcontractors. Therefore this contention upon the part of Ammerman amounts to a claim upon his part that he never became a contractor for the construction of the public highway. Therefore, according to his contention, his only service was to contract with some person for the Highway Department to construct the public highway. The appellants do not call our attention to a contract between Ammerman and the State Highway Department that would justify such a contention. Ammerman and the surety company admit the execution of the builder's bond, which presupposes a contract upon the part of Ammerman to perform the services. It will be presumed that Ammerman became bound by his contract to construct the highway project for the state. The appellants do not call our attention to any part of the contract in their briefs which would operate to relieve Ammerman from such obligation by his assignment of the contract to some other party. Therefore the surety company and the defendants are liable for the value of whatever material was furnished in the construction of the public improvement. Lohr & Trapnell et al. v. Johns, 77 Okla. 6, 185 P. 526.

¶5 The surety company contends that the defendants are only liable for the value of such material as was used in the public improvements. The defendants cite several cases to support their contention. However, several of the cases involve the enforcement of mechanic's liens between materialmen and the owners of the improvements. The defendants desire to make the rule applicable to the enforcement of the mechanic's lien, as a guide in construing the bonds given pursuant to section 7486, supra. The liability of the surety company upon a builder's bond, given pursuant to section 7486, supra, is not always measured by the rule applicable to the enforcement of the mechanic's lien between the owner of the improvements and the materialmen. There is a distinction, to some extent, between the principles applying in the respective cases. Federal Surety Co. v. St. Louis Structural Steel Co., 111 Okla. 208, 239 P. 154. The surety company and the defendants contend that they are not liable for the oil and gas used by the trucks in transporting material for use in the construction of the public highway, and that they are not liable for the materials used in the repairs and maintenance of such trucks. It is the contention of the surety company that they are liable only for such material as was used in the construction of the public improvements. On the other hand, the plaintiff insists that the defendants are liable for the value of the material referred to.