Royal Indemnity Co. v. Day & Maddock Co. , 4 Ohio Law. Abs. 89 ( 1926 )

ROBINSON, J.

1. The surety on a bond executed by a contractor for the construction of a public building, in conformity to the requirements of Sections 2365-1,-2 and -4, General Code, does not thereby obligate himself, to pay the rental, contracted to be paid by the principal in the bond, for the use of a concrete mixer, hoisting engine or other machinery used as appliances or part of the equipment to facilitate the performance by the contractor of his contract, nor does he obligate himself for any other expense incident to such rental use.

2. Where a statute requires the execution of a bond, and defines the terms and conditions thereof, and prescribes a form which shall be substantially complied with, a variation by the legislature in the form prescribed from the terms and conditions required in the statute providing for the bond, may be considered by a court in determining the intention of the legislature and the meaning of the statute providing for the bond, but may not operate to extend the scope of such statute.

3. A bond executed substantially in the form provided by the legislature will be construed to comprehend as its beneficial obligees those designated in the statute requiring and defining the terms and conditions of the bond, and in interpreting such bond and determining who the beneficial obligees thereof are, reference will be had to such statute.

# 4. There is such an analogy between Sections 2365-1, -2 and 4, General Code, and Sections 8310 and 8311, General Code, that it is apparent that in the enactment of Sections 2365-1, -2 and -4, the legislature intended to require the surety upon the bond required to be furnished by the contractor for the construction of a public building, to be liable for such labor and material furnished for the construction of a public building as would be the subject of a lien under the Mechanic’s Lien Law were the building privately owned.

Judgment reversed.

Marshall, CJ., Matthias, Allen and Kinkade, JJ., concur.