United States Fidelity & Guaranty Co. v. McCrackin

This is an appeal from the judgment of the district court of Pawnee county, rendered in favor of McCrackin Brothers, a copartnership, against United States Fidelity Guaranty Company, a corporation.

The judgment is against the sureties on a road construction bond. The action is to recover horse feed sold by plaintiffs to subcontractors of the assignee of the original improvement contract. The feed was fed to teams used in constructing the road.

Defendant contends that the sureties are not liable for the feed because the same does not constitute material furnished in the construction of the road.

On this question the authorities are in conflict. This court, however, has decided it adversely to the defendant in the case of Hyde Const. Co. v. Frickenschmidt, 140 Okla. 290,284 P. 34. It is there said:

"Feed furnished a subcontractor for his teams, used in completing a public work, is such 'material' as comes within the provisions of a bond executed pursuant to section 7486, C. O. S. 1921, and for which the surety is liable."

This case is decisive of the question here involved.

Judgment affirmed.

LESTER, C. J., and RILEY, CULLISON, SWINDALL, ANDREWS, and KORNEGAY, JJ., concur. CLARK, V. C. J., absent. McNEILL, J., disqualified.

Note. — See under (1) 22 R. C. L. p. 631; R. C. L. Perm. Supp. p. 5238.