G. H. Gato, Appellant, vs. David Warrington, et al., Appellees, 37 Fla. 542

Mabry, C. J.: The accompanying statement shows the status of the case as finally disposed of in the Circuit Court, and the argument of the case here is confined to the question whether or not the statutes in force at the time gave a lien on buildings in favor of materialmen. The act of 1887,

Chapter 3747, was the one in force when the contract in question was made, and the buildings therein provided for were erected; and while there can be no question as to the lien in favor of mechanics, laborers and other persons performing labor upon, or in the construction of any building, it is insisted that the fourth

section of the act does not secure any lien in favor of materialmen, nor is there any other provision in the act for such a lien. There is evidently an omission in the fourth

section of the act, and counsel for appellant insist that the court can supply it in order to carry out the apparent meaning of the Legislature; and that, -if this can not be done, there is no repeal of the act of 1885,

Chapter 3611, under which beyond question materialmen had a lien for material furnished in the construction of buildings. We do not see that the decision of the question in favor of appellant, viz: That the statutes in force at the time did give materialmen a lien on buildings for material furnished in their construction—will entitle him to a recovery on the evidence offered in the trial court.

The bond executed by McClatchy and sureties •refers to the contract for the erection of the buildings, and provides for its fulfillment by McClatchy in every particular, but does the bond impose any obligation on the sureties to indemnify appellant against liens for labor done, and material furnished in the construction of the buildings? The pleas of Warrington in substance and effect set up the defense that no such obligation was imposed by the bond, and a demurrer to the pleas was overruled.

The replication filed by appellant undertakes to construe the bond in connection with the contract to which it refers as imposing the duty upon the sureties of indemnifying appellant against lien claims for labor done and material furnished in the erection of the buildings, and issue was joined upon the replication. It is the duty of the •court to construe the terms of a contract, and if a demurrer had been interposed to the replication the court would have been compelled to have passed upon its sufficiency.

This was not done, and no question is raised here as to the sufficiency of any of the pleadings, but while this is the status of the record if it is apparent that appellant was not entitled to recover on the showing made the judgment should be affirmed although the ruling of the court on the question presented may not have been correct. The rule is well settled that the liability of a surety is not to be extended, by implication, beyond the-terms of his contract, and to the extent, in the manner and under the circumstances pointed out in his undertaking he is bound and no further. State, use of Gore vs.

Montague et al., 34 Fla. 32, 15 South. Rep. 589; Solary vs. Webster, 35 Fla. 363, 17 South. Rep. 646; Carson Opera House Association vs. Miller, 16 Nev. 327; Truckee Lodge vs. Wood, 14 Nev. 293. The contract between appellant and McClatchy required the-latter, in consideration of $8,260.00 to erect, finish and deliver on a date mentioned certain buildings in accordance with given plans and specifications; and the-obligation of the sureties was that McClatchy would fulfill in every particular the contract and deliver the buildings at the time required in a thorough artisan ‘ perfect and substantial manner.

The sureties have a right to stand upon the strict terms of -their engagement, and we discover no specific agreement on their part to indemnify appellant against liens for work done and material furnished in the construction of the buildings, nor is such a liability contained in the reasonably necessary import of the terms of the obligation. And in addition to this, it is apparent from the contract that in paying for the construction of the buildings appellant reserved the right to pay Mc-Clatchy as the work progressed upon signed and receipted weekly pay rolls and for material on the-ground.

The proof shows that appellant advanced over $3,000.00 to McClatchy to pay laborers and not on receipted pay rolls. The receipts offered in evidence show over $3,000.00 paid to McClatchy without-reference to any receipted pay rolls, and appellant -does not even claim that this amount was paid out on receipted payrolls. If'he paid this money in disregard of the terms of the contract he could not hold the sureties responsible for it, as any material departure from the agreement had the effect to release them. Carson Opera House Association vs. Miller, and Truckee Lodge vs. Wood, supra.

No other liability under the agreement than that sought to be imposed by reason- of the payments for labor and material was attempted to be shown and on the proof we think it is clear that appellant was not ■entitled to recover even if the statutes in force at the ■time did secure a lien in favor of materialmen for material furnished in the construction of buildings. Conceding this to be the case there is no basis for recovery and we affirm the judgment. In the disposition of the case we have assumed without deciding that materialmen had a lien by statute for material furnished in the construction of buildings.

An order will be entered affirming the judgment.