DocketNumber: No. 6917.
Citation Numbers: 107 S.W.2d 880, 130 Tex. 201, 1937 Tex. LEXIS 258
Judges: Hickman
Filed Date: 7/21/1937
Status: Precedential
Modified Date: 11/15/2024
The case is fully stated in the opinion of the Court of Civil Appeals, for which see
"It is further agreed and understood that the Contractor shall at the time of the execution of this obligation, furnish to the Owner and attach hereto a bond satisfactory to said Owner for Fifty (50%) per cent. of the total contract price for the building, as hereinabove mentioned, conditioned that said Contractor shall complete all portions of the work in strict accordance with the plans, specifications, addendas and details of this contract, and further conditioned that said Contractor shall well and truly perform each and every obligation imposed thereby." *Page 203
The bond was executed in accordance with the contract with plaintiff in error as surety thereon, the defeasance clause reading as follows:
"NOW THEREFORE, the conditions of the foregoing is such that if the said Principal shall well and truly and faithfully comply with all the terms, covenants and conditions of said contract on the part of the Principal, to be kept and performed according to the tenor thereof, and promptly making paymentwhen due for all labor and material entered therein, includingpayment to the sub-contractors, if any, and save and hold harmless the owner of said premises from any and all damages to property or personal injury sustained by any person in or about said premises during the said construction, then this obligation shall be null and void, otherwise to be and remain in full force and virtue of law." (Italics ours.)
We adopt the following from the opinion of the Court of Civil Appeals:
"In due course Blythe, as contractor, completed the improvement to the satisfaction of Bush, who accepted it. But it developed that Blythe had failed to pay some of the subcontractors, materialmen, and laborers employed by him in performing his contract with Bush.
"* * *
"It will be observed from a careful scrutiny of the pertinent provisions of the contract that they relate only to materialmen's and laborers' claims 'for which the owner might become liable,' or claims which the owner 'may be compelled to pay,' or 'claims against' the owners' premises; and that the owner was authorized to deduct from sums earned by the contractor only 'an amount sufficient to completely indemnify the owner against such claims.' It is conceded by the parties, first, that the owner could not be personally liable to the laborers and materialmen for work done and materials furnished under the contract; and, second, that the property, being a homestead, could not be subjected to the laborers' and materialmen's lien."
We observe in this connection that the fact that the property was homestead did not appear in the contract or bond. The contract between the contractor and owners expressed no purpose to have the bond executed for the benefit of subcontractors, materialmen and laborers, and neither was such purpose expressed in the bond. In short, if the defendants in error have any right of action against the plaintiff in error, the surety on the contractor's bond, it is in virtue alone of the italicized language of the defeasance clause in the bond above copied. The *Page 204 question, thus narrowed down, is whether the language of the defeasance clause of the bond, standing alone, gave a direct right of action to subcontractors, laborers and materialmen against the surety on the contractor's bond to the owner.
1 The leading case on the question is National Bank of Cleburne v. Gulf, C. S. F. Ry. Co.,
Defendants in error rely upon the case of Wm. Cameron Co. v. American Surety Co., (Com. App.)
It is claimed that the judgment of the trial court is supported by the holding in Mosher Mfg. Co. v. Equitable Surety Co.,
2 There are expressions in our decisions that the intent of the parties to a bond may be determined by considering extraneous matters. The better rule, however, is that contracts and bonds of the nature of those here involved are plain and unambiguous; that they should be construed by their provisions alone, *Page 206 and that the intent and legal effect thereof should not be arrived at by a consideration of extraneous evidence. Uniformity of decision could not be attained were the parties permitted to go outside the terms of the instruments themselves and consider parol evidence to determine intention.
It is claimed that the conclusions above announced are not in harmony with the decisions of the numerical majority of courts in other jurisdictions. From a consideration of the many cases reviewed in a copious note in 77 A. L. R., beginning on page 21, it would seem that the claim is probably well founded. In the light of this fact the question has been carefully reconsidered, but after repeated conferences it has been concluded that the established rule in this State is sound and should be adhered to. To our minds a court is not justified in reading into a condition in a defeasance clause of an indemnity bond made by a private contractor to the owner a purpose to make third parties beneficiaries thereunder. That purpose should appear elsewhere in the bond or contract. At any rate, the rule to which we adhere in this opinion is firmly established in our jurisprudence and will not now be disturbed.
The judgments of the trial court and Court of Civil Appeals, in so far as they award recovery against plaintiff in error, are reversed and rendered. In other respects they are not challenged and will not therefore be disturbed.
Opinion adopted by the Supreme Court July 21, 1937.
Rehearing overruled October 13, 1937.
Oak Cliff Lumber Co. v. American Indemnity Co. , 266 S.W. 429 ( 1924 )
National Bank of Cleburne v. Gulf, Colorado & Santa Fe ... , 95 Tex. 176 ( 1902 )
General Bonding & Casualty Ins. Co. v. Waples Lumber Co. , 1915 Tex. App. LEXIS 540 ( 1915 )
Maryland Casualty Co. v. Wilson , 1932 Tex. App. LEXIS 651 ( 1932 )
Employer's Liability Assurance Corp. v. Trane Co. , 139 Tex. 388 ( 1942 )
Standard Accident Ins. Co. v. Knox, Recr. , 144 Tex. 296 ( 1944 )
Knox Recr. v. Ball , 144 Tex. 402 ( 1945 )
FPL Energy Upton Wind I, LP v. City of Austin, Acting by ... ( 2007 )
FPL Energy Upton Wind I, LP v. City of Austin, Acting by ... ( 2007 )
in Re Alvin Edward Parker, Jr., Relator ( 2009 )
Maryland Casualty Co. v. Dave Lehr, Inc. , 110 S.W.2d 921 ( 1937 )
Standard Accident Ins. Co. v. Knox , 1944 Tex. App. LEXIS 813 ( 1944 )
Texas & P. Ry. Co. v. Citizens Nat. Bank in Abilene , 1939 Tex. App. LEXIS 516 ( 1939 )
Knox v. Ball , 1944 Tex. App. LEXIS 1048 ( 1944 )
FPL Energy Upton Wind I, LP v. City of Austin, Acting by ... ( 2007 )
Shaw v. O'SULLIVAN , 1960 Tex. App. LEXIS 2120 ( 1960 )
La Salle Iron Works, Inc. v. Largen , 1966 Mo. LEXIS 595 ( 1966 )
FPL Energy Upton Wind I, L.P. v. City of Austin Ex Rel. ... , 240 S.W.3d 456 ( 2007 )