Ochs v. M. J. Carnahan Co. , 42 Ind. App. 157 ( 1906 )

Roby, C. J.

Action upon a bond executed by appellant Ochs as principal, and by his eoáppellants as sureties, in the sum of $2,186, upon conditions as follows:

“The conditions of this obligation are such that whereas said TI. E. Ochs has contracted to build and complete a two-story frame building in the town of Mitchell’ Indiana, for said George Head, and according to certain written 'plans and specifications as heretofore agreed to by said H. E. Ochs and said George Head. Now, therefore, if said H. E. Ochs shall build and complete said building in every way according to said written specifications and plan, and shall pay for all material used and for all help employed in the construction of .said building, then this obligation to be void; otherwise, to be in full force and effect.”

The complaint is in two paragraphs, and each of them contains averments to the effect that said Ochs purchased from appellee lumber and material for use and to be used in said building then being erected; that said material was so used and was of the value of $500, and that there is due and unpaid on account thereof $261.45, with interest; that demand therefor has been made of the defendants and payment refused by them. A copy of the bond and a bill of particulars of material are filed with the pleading.

1. By the terms of the bond the sureties agreed to pay for all material used, if the contractor failed to do so. The failure to pay appellee was therefore a breach of the bond for which it may recover. Williams v. Markland (1896), 15 Ind. App. 669; Young v. Young (1899), 21 Ind. App. 509; Brown v. Markland (1899), 22 Ind. App. 652; American Surety Co. v. Lauber (1899), 22 Ind. App. 326; King v. Downey (1900), 24 Ind. App. 262.

2. It is true that in these cases the bond had been given to secure payment for materials used in a publid building, upon which a mechanic’s lien could not be acquired, and that such fact has a more or less prominent part in the opinions; but while the ability of the material-man and mechanic to compel payment of their claims by filing a lien would be influential in causing them to resort to the bond, it cannot affect the obligation of the bond. If an agreement to pay for material, if the contractor does not, is an undertaking. for the benefit of the materialman in the one instance, it is in the other. Its terms are not affected by the possibility or impossibility of otherwise procuring payment. If the materialman procured payment by means of a lien, the appellants would be liable to the owner upon the bond, so that there can be no harshness in avoiding circuity of action, and permitting direct recovery by the party who furnishes the material.

3. It is insisted that the demurrer to the first paragraph of complaint should have been sustained without regard to the foregoing propositions, for the reason that it is therein averred that the owner of the building assigned the bond to appellee prior to the institution of the action, and that upon the theory thus adopted there could be no recovery, unless the owner could recover, were he suing, which he could not do, never having paid anything. To this appellee answers that the demurrers filed were joint and several as to parties, that the court overruled the “joint and several demurrers to-plaintiffs’ complaint,” and that the exception does not, therefore, apply to the overruling of a demurrer to the first paragraph of complaint.

Having come to the conclusion that the judgment should be affirmed, an opportunity is thus afforded us of reaching the right result without any apparent consideration of the actual controversy. This convenient method, whenever adopted, makes bad law, and cannot be very satisfactory to the parties, who can hardly be supposed to have taken the appeal for the purpose of procuring a judgment upon so artificial a point.

The addition of the averments relative to the assignment does not take out of the pleading the averments heretofore summarized. The statute provides for a demurrer for want of facts. In a general way every case has a theory, but facts control theories, theories do not change facts. Sufficient facts are exhibited in the first paragraph of complaint to repel a demurrer. It is only necessary to prove enough of the averments to make out a cause of action. Long v. Doxey (1875), 50 Ind. 385, and it is therefore competent to ignore immaterial averments in determining the sufficiency of a pleading.

Judgment affirmed.

Comstock, J., absent.