State v. Blanchard Construction Co.

Citations

• 91 Kan. 74
• 136 P. 905
• 1913 Kan. LEXIS 339

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Indemnity Bond — Surety Company — ■Rules of Strict Construction — Not Applicable. In an action upon a bond written by a corporation engaged in the business of furnishing surety for compensation the rules of strict construction which usually control in cases of accommodation sureties will not be applied, and if the bond is fairly open to two constructions, one of which will uphold and the other defeat the claim of the insured, that which is most favorable to the insured will be adopted. But where there is no ambiguity, the plain intention of the parties can not be disregarded or nullified by construction.</p> <p>2. Building Contract — Surety Bond — Terms and Provisions. A contract entered into between the state of Kansas and a construction company for the erection of a building provided that the state architect should make a certified estimate each month of the value of all labor and material used that month in the construction, and that the state would pay to the contractor 90 per cent thereof; that no payments should be made except on his certificate that the work for which the payment was due had been properly done. A surety company guaranteed the faithful performance of the contract on the- part of the construction company, and by reference the contract was made a part of the bond. The bond also contained the following provision: “If payments are not made promptly in accordance to contract, this bond becomes null and void.” During the progress of the work the construction company abandoned its contract, and the state had the work completed by another contractor. In an action on the bond it is held:</p> <p>(а) That the rights of the parties are not affected by the fact that the architect was a state officer. In making the estimates he was not acting as state architect, but as an individual.</p> <p>(б) The parties agreed upon the architect as the person upon whose judgment and decision with respect to the character, amount and va