W. S. Dickey Clay Mfc. Co. v. New York Casualty Co. , 174 Okla. 281 ( 1935 )

The principal question presented in this case is identical with the question presented in the case of New York Casualty Co. of New York v. Wallace Tiernan, 174 Okla. 278,50 P.2d 176.

Therein it was held that the superadded stipulations limiting the liability of a surety on a bond required by section 10983 O. S. 1931, to indebtedness incurred for labor and material which might become the basis of liens against property and the real estate upon which it is situated, all belonging to the city, must be disregarded in a suit by a materialman on the bond.

The law as announced in that case must govern in this case. It follows the trial court erred in sustaining the demurrer to plaintiff's evidence, and in holding that the case is governed by the case of Hutchinson et al. v. Kreuger, 34 Okla. 23,124 P. 591.

The trial court failed to take into consideration the amendment of the law made after the decision in the Kreuger Case.

The judgment is reversed and the cause is remanded for a new trial.

McNEILL, C. J., OSBORN, V. C. J., and BUSBY, CORN, and GIBSON, JJ., concur. WELCH, J., dissents. PHELPS, J., not participating. BAYLESS, J., absent.