SOUTHERN SURETY CO. v. WAITS

Oklahoma Supreme Court1915-02-02No. No. 3991

45 Okla. 513146 Pac. 431

Summary · law.co

Holding. The judgment of the trial court was affirmed. The surety company remained liable on the performance bonds for the unpaid labor and material bills, as the bonds were properly authorized under state law and the trial court did not err in overruling the defendant's procedural objections and sustaining judgment.

A contractor named Nichols entered into two separate construction contracts with the city of Checotah—one for a sewer system and one for a waterworks extension—and provided performance bonds naming Southern Surety Company as surety. During the work, Nichols issued negotiable due bills to various workers and suppliers totaling over $322, which were then assigned to the plaintiff. When Nichols refused to pay these obligations, the plaintiff sued the surety company on the bonds to recover the amounts owed for labor and materials.

The surety company challenged the lawsuit on procedural grounds, first arguing that the petition failed to state a valid legal claim and later requesting that the plaintiff separately state and number the causes of action. The trial court overruled both procedural objections and entered judgment against the surety. On appeal, the surety argued that the court erred in overruling the procedural motion and that the bonds themselves were invalid because not authorized by law.

The court rejected both arguments. It found that the procedural motion should have been filed earlier and should have specifically identified which matters required separation, and that even if the trial court had discretion to grant it, reversal was not warranted. On the merits, the court determined that the bonds complied with state law governing performance bonds for public works contracts and were enforceable as either statutory bonds or common-law bonds, since nothing in them violated public policy.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Enforceability of performance bonds issued for public works contracts
Timeliness and specificity required for motions to separately state causes of action
Whether grounds for procedural reversal apply when a trial court overrules a formal motion not going to the merits

Procedural posture

The defendant surety company appealed from a judgment rendered by the trial court in favor of the plaintiff on a claim against performance bonds, after the trial court overruled the defendant's demurrer and subsequent procedural motions.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

HARDY, J.

On January 16, 1911, C. E. Nichols entered into a contract with the city of Checotah for the construction of a sewer system in said city, and on March 27, 1911, entered into a contract with said city for the installation of an extension of its waterworks plant, and executed • and delivered to said city- two bonds, with the Southern Surety Company as surety, both of which bonds were conditioned that the said Nichols should 0pay all bills incurred for labor and material furnished in the installation -and completion of said work. During the .progress of said work said Nichols issued certain negotiable duebills for work and labor to various parties, aggregating $245.18 for work upon the sewer system, and $76.85 for work upon the waterworks system; all of which duebills were assigned to plaintiff, and payment of same refused by said Nichols; and judgment is therefore asked against the surety on said bonds.

On November 11, 1911, the Southern Surety Company, who will hereafter be designated as defendant, filed its demurrer in said cause to the plaintiff’s petition, in which the sufficiency of said petition was challenged, first, because same did not state a cause of action, and, second,because of a defect in parties defendant, which demurrer was, on November 21, 1911, sustained as to the first ground and overruled as to the second, and exceptions, saved by defendant. Thereupon, on said date, said defendant filed its motion to require the plaintiff to separately state and number the causes of action contained in his amended petition, which motion was by the court overruled, and exceptions saved; and, defendant declining to plead further, judgment was rendered in favor of the plaintiff in the sum of $322.23, and the case is brought here for review.

There are two assignments of error relied upon in defend-, ant’s brief, as follows: The court below erred: First, in not sustaining the motion of the defendant to require the plaintiff to separately state and number his causes of action; and, second, in giving judgment on said petition, as the same did not state a cause of action against the defendant.

The motion to require the plaintiff to separately state and. number his causes of action was not filed- until after the demurrer had been passed upon by the court, and did not point out in any particular the matters which defendant desired the court to act, upon, nor did it designate the matters supposed to constitute each’ separate and distinct cause of action. No answer was filed to. the petition, nor issue joined upon the ’ allegations therein. The motion to require the plaintiff to separately state and number his causes of action is a formal one, not going to the merits of the case, and should be presented promptly. Wood v. Anthony, 9 How. Prac. 78; French v. Deane, vt Colo. 504, 36 Pac. 610, 24 L. R. A. 387. We think that in fairness to the trial court and to the. opposite party the motion to separately state and number the plaintiff’s different causes of action should point out ’specifically the matters which the defendant desires the court to take action upon, and should designate the matters supposed to constitute each separate and distinct cause of action, so that the court might act intelligently. The court, however, might, in its discretion, have acted upon and sustained the motion, but, having overruled the same, the question is then presented whether this court should reverse the decision of the trial court because of its ruling thereon. We think not. Ambrose v. Parrott, 28 Kan. 693; Gilmore v. Norton, 10 Kan. 491; Cockrell v. Schmitt, 20 Okla. 207, 94 Pac. 521, 16 L. R. A. (N. S.) 410, 16 Ann. Cas. 56; Grimes v. Cullison, 3 Okla. 268, 41 Pac. 355; File v. Springel, 132 Ind. 312, 31 N. E. 1054; Goldberg v. Utley, 60 N. Y. 427.

Hnder the second assignment it is urged that the bonds sued upon are invalid, because not authorized by law. Section 6164, Comp. Laws 1909, being section 3881, Eev. Laws 1910, is as follows:

“Whenever any public officer shall, under the laws of the state, enter into contract in any sum exceeding one hundred dollars, with any person or persons, for purpose of making any public improvements, or constructing any public buildings or making repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureites to the state of Oklahoma, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvements.”

Section 6165, Comp. Laws 1909, being section 3882, Eev. Laws 1910, requiressuch bond to be filed in the office of the clerk of the district court in which such public improvement is made, or building erected, and authorizes any person to whom there is due any sum for labor or material furnished, or his assigns, to bring an action on said bond for the recovery of said indebtedness. We think this statute is applicable to this case, and that the bonds In question are in compliance therewith. Dole e Bros. Co. v. Chaney et al., 44 Okla. 735, 145 Pac. 1119. But, if this were not so, nevertheless .the bonds must be held valid, for the reason that the same would be good as common-law bonds; for there is nothing in the provisions of said bonds which is in violation of any public policy or law of this state. Woodward v. Bingham, 25 Okla. 400, 106 Pac. 843; Blanchard v. Anderson, 27 Okla. 732, 113 Pac. 717. The city had the undoubted right, in the absence fo statutory authority, to require bonds to secure payment of labor and material furnished in the progress of the work. City et al. v. Hindry, 40 Colo. 42, 90 Pac. 1028, 11 L. R. A. (N. S.) 1028; Baker v. Bryan, 64 Iowa, 561, 21 N. W. 83; Glencoe Lime & Cement Co. v. Von Phul, 133 Mo. 561, 34 S, W. 843, 54 Am. St. Rep. 695; Devers v. Howard, 88 Mo. App. 253; Am. Surety Co. v. Raeder, 15 Ohio Cir. Ct. R. 47; Phila. v. Stewart, 196 Pa. 309, 45 Atl. 1056; Lyman v. Lincoln, 38 Neb. 794, 57 N. W. 531; Kaufmann v. Cooper, 46 Neb. 644, 65 N. W. 796; State ex rel. Bantelt v. Liebes, 19 Wash. 589, 54 Pac. 26.

The judgment of the court below is affirmed.

All the Justices concur.