Mayor of Baltimore Ex Rel. Warren Webster & Co. v. Maryland Casualty Co.

Adkins, J., delivered the opinion of the Court. This .appeal is from a judgment for defendant on a demurrer'to the declaration. ⁵⁰⁹ The declaration contained the common counts and three special counts., the latter being identical except that each applied to a different school building. The common counts were struck out by plaintiff before judgment was- entered. In each of the remaining counts, it is alleged that one William E. Kirwan, trading as.

The Kirwan Construction Company, entered into* a written agreement with the Mayor and City Council of Baltimore, whereby the siaid Kirwan agreed to furnish the labor and materials, for the heating and ventilating apparatus, of the designated school, and which said contract provided that the work thereunder should be performed in all respects in accordance with certain plans and specifications therein referred to, a copy of the agreement, and excerpts from the .specifications -being filed with the nwrr. as ,a part thereof; that in compliance with the provisions of said agreement and said specifications, ¡and in order to secure the faithful performance on the part of said Kirwan of said agreement, the said Kirwan, as principal, and the defendant company as surety, executed a, bond, which is set out- in full in the nwrr. The bond recites the contract, and the condition of the bond is “that if the above bounden William E. Kirwan shall in all respects comply with the terms and conditions of said contract, and his obligations, thereunder including the specifications, therein referred to1, and made part thereof, and shall indemnify and save harmless the said Mayor and City Council of Baltimore City against or from all costs and expenses, damages, injury or loss to which the said Mayor and City Council of Baltimore may be subjected by reason of .any wrongdoing, misconduct, want of care or skill, negligence, or default upon the part of the said William F. Kirwan, his agent or employees, in or about the execution or performance of said contract, including said specifications, and shall save and keep harmless the said Mayor and City Council of Baltimore against or from all losses, costs and expenses to it from any canse whatever including patent infringements in the matter of installing said heating and ventilating apparatus, then this obligation to be ⁵¹⁰ void, otherwise to be and- remain in full force and virtue in law.” The nwrr. further alleges that Warren Webster and Corn-pany, the equitable plaintiffs, did, at the request of the said Kirwan, furnish certain material to said Kirwan to be used in the performance of said agreement which was used by him in and about the installation of the heating and ventilating-apparatus in said schools; that neither the said Kirwan nor any one for him has paid to said Webster and Company any part of the price of said material; that said Kirwan has been adjudicated a bankrupt and the Mayor and City Council of Baltimore has taken over the completion of the said contract; that demand has been made by the equitable plaintiff upon the said defendant as surety on the bond to pay the amount due, but the defendant has failed and refused to pay the-same. In the specifications, under “Bonds,” it is provided that “the successful bidder must comply with all of the requirements of section 15 of the city charter (the amount of bond being equal to the amount of the contract price), and the said bond is to be not only a guarantee for the faithful performance of the contract and carrying out of these specifications and drawings, but is also to be a. surety to replace any improper1 work or materials that may become apparent within two years after the work is accepted and is also tO' save the city harmless from all claims, or loss or damage, in any wiay or at any time or kind whatever, including paL ent infringements, whether arising from suits or otherwise in connection with this contract.” There is also the further-provision under “Bonds” that the contractor shall furnish a new ¡bond on ten days’ notice, whenever the surety in the-bond shall be deemed by the Mayor to be insufficient or unsatisfactory,- in the same penalty and on the same conditions. Near the end of the specifications, and in no way connected with the provisions as to the bond, there is the following clause under the head of “P’ayments”: “Payment under this contract will be made monthly at 80 per cent, of the work performed after all work ⁵¹¹ embraced in this contract is completed.

Should, however, any expense be caused by which the city shall be compelled to pay out money on account of neglect or default of this contractor, all such amounts shall be deducted previous to payment being made. Before the