Opinion
Decided November 21, 1933.
Statutory construction — Suretyship action upon a contractor's performance bond — Sections 2314 et seq. and 2365-1 et seq., General Code — Contract entered into by state — Action properly brought under Section 2314 et seq., General Code, when — Pleading.
An action upon a contractor's performance bond is properly brought under Section 2314 et seq., General Code, which relate to the procedure, when the contract is upon the part of the state, as distinguished from Section 2365-1 et seq., General Code, when the petition shows that the contract in question was entered into by the state through its Department of Public Welfare and that the same exceeded $3000 in cost.
ERROR: Court of Appeals for Madison county.
Mr. Frank J. Murray, for plaintiff in error.
Mr. Frank Delay and Messrs. Crabbe Tootle, for defendant in error.
In the lower court the plaintiff in error, the United States Fidelity Guaranty Company, was defendant, and the defendant in error, The State, ex rel. The Oak Hill Fire Brick Coal Co., was plaintiff. We will refer to the parties as they appeared in the lower court.
In brief, the plaintiff, in its petition, after stating the corporate existence of itself and the defendant, alleged that on October 6, 1931, the defendant Joseph L. Skeldon Engineering Company filed with the state of Ohio, Department of Public Welfare, a proposal for the furnishing and erecting of one new boiler, two stokers and equipment for the London Prison Farm at London, Ohio, as per plans and specifications of the engineer for the Department of Public Welfare of the state of Ohio; that on said sixth day of October said engineering company executed and delivered to the state of Ohio a bond referable to the proposal and to the contract entered into therewith under Sections 2315 and 2316 of the General Code of Ohio, in the sum of $24,000, with the defendant United Fidelity Guaranty Company as surety thereon (copy of the bond is attached to the petition); that subsequently said proposal was duly accepted by the state of Ohio, acting by the Department of Public Welfare, and the contract awarded to said engineering company; that on the thirteenth day of October, 1931, said engineering company entered into a contract with the state of Ohio, acting by the Department of Public Welfare, for the construction and completion of such improvement; that all steps required by law preliminary to the making of said contract were duly performed; that the approval of the Attorney General of Ohio was certified thereon; that the Director of Finance of Ohio duly certified that the amount required to meet the same had been lawfully appropriated for such purpose and was in the treasury or in the process of collection to the credit of the appropriate fund free from any previous encumbrances; that it furnished to said engineering company material for the construction of said improvement upon an account, a copy of which is attached and marked Exhibit "B", the first of said material being delivered and furnished on or about the fifteenth day of January, 1932, and that upon said account there is now due plaintiff from said engineering company the sum of $1050.20, with interest; that the construction of said improvement was completed on or about July 23, 1932; that on or about January 3, 1933, plaintiff furnished the said surety company a statement of the amount due as above set forth; and that in January, 1933, said engineering company was adjudged a bankrupt in the District Court of the United States for the Northern District of Ohio, Western Division. Plaintiff therefore prayed for judgment in the sum of $1050.20, with interest.
To this petition the defendant, The United States Fidelity Guaranty Company, filed a demurrer.
This demurrer was overruled by the trial court, and the surety company not answering judgment was rendered in favor of plaintiff against said surety company in the amount prayed for.
From such judgment error is prosecuted to this court.
The petition in error sets forth three grounds upon which a reversal of the judgment is sought:
1. The facts stated in the petition are not sufficient in law to maintain said action.
2. The court erred in overruling the demurrer to the petition.
3. The judgment was given for defendant in error when it ought to have been given for plaintiff in error.
Counsel have supported their respective contentions with briefs in which the question at issue is discussed and the authorities in support of their respective positions are cited.
In brief, the question presented for determination relates to the sufficiency of the petition of plaintiff.
A determination of this question depends upon whether the bond sued upon is controlled by the provisions of Sections 2314, 2315 and 2316, General Code, or whether the same is controlled by the provisions of Section 2365-1 et seq., General Code. Counsel for plaintiff concede that if the case is controlled by the provisions of Section 2365-1 et seq., then certain jurisdictional facts required by such sections are not stated in the petition and the demurrer should have been sustained. Counsel for defendant surety company, upon the other hand, admits with equal frankness that if the case is controlled by the provisions of Sections 2314, 2315 and 2316 of the General Code, then the petition does state a cause of action and the demurrer was properly overruled.
Sections 2314, 2315, 2316 et seq., General Code, are the result of an amendment passed by the Legislature March 20, 1917. Section 2365-1 et seq. were enacted by the Legislature the following day, viz., March 21, 1917.
The question as to whether Sections 2314, 2315 and 2316, General Code, were impliedly repealed by the enactment of Sections 2365-1, 2365-2, 2365-3, etc., has been determined by our Supreme Court in the case of State, ex rel. Fleisher Engineering Construction Co., v. State Office Building Commission, 123 Ohio St. 70, 174 N.E. 8. The second paragraph of the syllabus of this case reads as follows:
"Section 2319, General Code, regulating the filing of proposals and the awarding of a contract for the erection of a building for the use of the state, has not been repealed by implication, and is in full force and effect."
This decision disposes of the suggestion that Sections 2314, 2315 and 2316, General Code, were impliedly repealed by the enactment of Sections 2365-1, 2365-2, 2365-3, etc.
Sections 2314 to 2330, General Code, are limited in their character to buildings or structures for the use of the state of Ohio or any institution supported in whole or in part by the state where the aggregate cost exceeds $3,000.
The petition shows that this was a contract entered into by the state, through its Department of Public Welfare, and that the same exceeded $3,000 in cost.
We shall not undertake to quote these respective sections of the Code in detail. This will be unnecessary as counsel are thoroughly familiar with the same and they have been discussed in the briefs of counsel.
Section 2314, General Code, in brief, however, provides that whenever any building or structure for the use of the state or any institution supported in whole or in part by the state or in or upon the public works of the state that are administered by the superintendent of public works is to be erected or constructed, or whenever additions or alterations, structural or other improvements are to be made, the aggregate cost of which exceeds three thousand dollars, plans and specifications shall be prepared.
This section specifically relates to improvements made by the state.
Section 2365-1, General Code, in brief provides that when public buildings or other public works or improvements are about to be constructed, erected, altered or repaired under contract, at the instance of the state, or any county, city, village, township or school district thereof, it shall be the duty of the board, officer or agent, contracting on behalf of the state, county, city, village, township, or school district, to require the usual bond as provided for in the statutes with good and sufficient sureties, etc.
From a consideration of the sections of the Code involved we cannot escape the conclusion that the bond in question is controlled by the provisions of Sections 2314, 2315, 2316, etc. These sections relate to the procedure where the contract is upon the part of the state.
Sections 2365-1, 2365-2, 2365-3, etc., relate to contracts not only upon the part of the state, but also to contracts entered into by a county, city, village, township or school district.
Counsel for plaintiff in their brief, by means of parallel columns, have set forth in detail various other differences between the provisions of Sections 2314, 2315, 2316, etc., upon the one hand, and the provisions of Sections 2365-1, 2365-2, 2365-3, etc., upon the other hand. It will be unnecessary to restate such additional differences in this opinion, as counsel are familiar with the same.
From a consideration of the various sections of the Code referred to and of the authorities cited, we are of opinion that this proceeding is controlled by the provisions of Sections 2314, 2315 and 2316, General Code, and that the lower court properly overruled the demurrer to the petition.
Finding no error in the record which we consider prejudicial to plaintiff in error, the judgment of the lower court will be affirmed.
Judgment affirmed.
HORNBECK, P.J., and BARNES, J., concur.