Fidelity & Deposit Co. v. Poe

Briscoe, J., delivered the opinion of the court. The questions! presented for our determination, on the record now before us, arise upon a bond given by D. E. Marshall & Co. of Kansas City, Mo., contractors, as principal, and the United Surety Company, as surety, in the sum of $50,000, to the Board of Regents of the Fifth District Normal School at Maryville, Missouri. The bond was, given for the faithful performance by the principal of a contract entered into to’ erect a Normal School building for the sum of $152,583, and to pay for all labor and materials required for its construction. The claim, of the appellant is for the sum of $1,929.95, as assignee of three materialmen, who' furnished materials on the work: Ourfman.

Brothers, $887.24; H. S. Renshaw, $315, and Pittsburgh Plate Grlassi Company, $727.71. There were three separate contracts for the construction of different parts ⁵²¹ of the building, and the bond of tbe United 'Surety Company guaranteed tbe perform,anee of the contract and the payment for all labor and materials necessary to erect that part of the building, contained in Proposal Ko. 1, and dated May 17, 1907. The second and third contracts were covered by bonds of the Fidelity and Deposit Company, the appellant on the record in this case. According to the testimony, on account of the exhaustion of the funds for the completion of the building and as provided in the contract itself, work under the first contract was stopped about September, 1908. -Subsequently, on or about September, 1909, the contractor again began to work on the building, under an agreement by the parties to the building contract by which the contract was declared to be “revived.” The first question here presented is precisely the same as the one determined by ns upon a similar state of facts, in tbe recent case of Kansas Oily Slate and Tile Roofing Company v. Poe et ah, receivers for the United Surety Company of Baltimore, the appellees on this record, at the present term of this court (ante, p-. 518).

In the course of the opinion in that case this court said: “The conduct of the parties clearly shows their understanding that the original contract became extinct when the work was discontinued under its own provisions, for they proceeded to revive it by a new agreement after the money required for the completion of the building was at length made available. Meanwhile there had been a total cessation of the work for a period of fourteen months, and the operating; equipment of the contractors had been removed. Under the circumstances an express revival of the old contract or the execution of a