Fidelity & Casualty Co. v. Warren-Allen Carpet Co. , 1924 Ohio Misc. LEXIS 1856 ( 1924 )

MAU'CK, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

This was a suit by the Warren-Alien Carpet Co., a materialman, against a surety company to recover of the latter on a surety bond executed by said Company as surety and the L. A. Kichler Co. as principal. The bond was to secure the faithful pjerformanee by the Kichler company of a contract to furnish material and labor to the city of Cleveland for its Public Hall on East 6th street. The bond provided among other things: “Shall pay all lawful claims of sub-contractors, materialmen and laborers for labor performed and for materials furnished, etc.”

The plaintiff entered into a contract with the Kichler Co. to furnish the Public Hall with a certain amount of carpet and linoleum and the labor of putting it in place for a specified amount. The Kichler Co. paid part of the contract price, then defaulted and went into bankruptcy. This suit was brought to recover the unpaid balance. The court granted a motion in favor of the plaintiff for a direct verdict. The defendant prosecuted error, claiming that the petition did not state a cause of action in that it did not allege the claim to be a “lawful claim” and that the court erred in refusing to direct a verdict for defendant upon the ground that the evidence did not disclose that the contract price for the carpet, etc., was a reasonable price. In sustaining the judgment of the lower court, the Court of Appeals held:

1. As the actual cost is some evidence of the value or reasonable cost and as it is common knowledge that buyers bargain for the lowest price that they can get, it cannot be said but that there was some evidence to make out a prima facie case that the contract price was reasonable.

2. As reasonable minds could not have differed on the evidence adduced, no error was committed by the court in sustaining the motion of the plaintiff for a directed verdict.