W. S. DICKEY CLAY MFG. CO. v. NEW YORK CAS. CO.

W. S. DICKEY CLAY MFG. CO. v. NEW YORK CAS. CO.
1935 OK 1030
50 P.2d 325
174 Okla. 281
Case Number: 24629
Decided: 10/22/1935
Supreme Court of Oklahoma

W. S. DICKEY CLAY MFG. CO.
v.
NEW YORK CASUALTY CO.

Syllabus

¶0 1. Principal and Surety--Rules of Construction of Contract of Suretyship.
A contract of suretyship should be interpreted and the intelligible meaning-of its language ascertained. It will then be construed and applied strictly in favor of the surety, and without allowance of an implication against him; but this rule in no way interferes with the use of the ordinary tests by which the actual meaning and intention of the contracting parties are determined, and the same canons of interpretation of other contracts should be applied in suretyship contracts.
2. Bonds--Construction of Statutory Bond.
Statutory bond must be construed and enforced in terms of statute.
3. Same--Superadded Stipulations in Bond Disregarded.
Superadded stipulations in statutory bond must be disregarded and true intent of parties enforced.

Appeal from District Court, Oklahoma County; Hal C. Thurman, Judge.

Action by W. S. Dickey Clay Manufacturing Company against the New York Casualty Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Keaton, Wels, Johnston & Barnes, for plaintiff in error.
Tomerlin, Chandler & Shelton, for defendant in error.

RILEY, J.

¶1 The principal question presented in this case is identical with the question presented in the case of New York Casualty Co. of New York v. Wallace & Tiernan, 174 Okla. 278, 50 P.2d 176.

¶2 Therein it was held that the superadded stipulations limiting the liability of-a surety on a bond required by section 10983 O. S. 1931, to indebtedness incurred for labor and material which might become the basis of liens against property and the real estate upon which it is situated, all belonging to the city, must be disregarded in a suit by a materialman on the bond.

¶3 The law as announced in that case must govern in this case. It follows the trial court erred in sustaining the demurrer to plaintiff's evidence, and in holding that the case is governed by the case of Hutchinson et al. v. Krueger, 34 Okla. 23, 124 P. 591.

¶4 The trial court failed to take into consideration the amendment of the law made after the decision in the Kreuger Case.

¶5 The judgment is reversed and the cause is remanded for a new trial.