Ulpiano Casal, Inc. v. Totty Manufacturing Corp.
Ulpiano Casal, Inc. v. Totty Manufacturing Corp.
Opinion of the Court
delivered the opinion of the Court.
According to the stipulation concerning the facts of the case agreed by plaintiff and codefendant-insurers, Félix A. León, Inc. (designated hereinafter as León), of which the U.S. Casualty Co., New Amsterdam Casualty Co., and Continental Casualty Co. are sureties, was the principal contractor of the public work “Candelaria Housing Development Project” in Mayagiiez. Defendant Totty Manufacturing Corp. (designated hereinafter as Totty), was subcontractor of León in relation to the manufacturing and supply of some railings for said work. Appellant Maryland Casualty Co. issued to Totty, in favor of León, a performance bond which, insofar as pertinent to this case, reads:
“Whereas, the Principal has entered into a certain written agreement, dated the 8th day of December, A.D. 1958 with the Owner (or Obligee) for the fabrication of 308 railings (balconies) for Project 4-9 — Municipal Housing Authority at Maya-giiez, Puerto Rico (Candelaria Housing Project) in accordance with contract and specifications which agreement is or may be attached hereto for reference.
“Now, Therefore, the condition of this obligation is such, that if the Principal shall well and truly perform and carry out the covenants, terms and conditions of said agreement, then this obligation to be void; otherwise to remain in full force and effect.” (Italics ours.)
Appellee Ulpiano Casal, Inc. (referred to hereinafter as Casal), supplied materials on credit to Totty, which the latter utilized in the construction of said railings, remaining in debt with Casal on that account for the amount of $9,667.39 notwithstanding the fact that Totty had received
“The contractor [León] and the subcontractor [Totty] agree to be bound by the terms of the General Conditions, drawings and Specifications, as far as applicable to this Subcontract, and also by the following provisions:
The Subcontractor Agrees:
To be bound to the Contractor by the terms of the General Conditions, drawings and Specifications, and to assume toward him all the obligations and responsibilities that he, by those documents, assumes toward the owner.” (Italics ours.)
Paragraph (a) of stipulation No. 3 of said General Conditions of the construction contract for the project in question, signed by León and the Municipal Housing Authority of Mayagfiez, provides that “(a) Execpt as otherwise specifically stated in the contract [that is, in the construction contract of which this provision is a part] the Contractor shall provide and pay for all materials, labor, tools, equipment ... of every nature whatsoever necessary to execute the work to be done under the Contract. . . .” Paragraph (d) of stipulation No. 4 provides in part that: “The Contractor shall include in all subcontracts related to the work the appropriate provisions to bind the Subcontractors to the Contractor by the terms of the General Conditions, specifications and other documents comprised in the Contract, as far as applicable to the work of the subcontractors. . . .” (Italics ours.)
Feeling aggrieved, appellant requested the review of the judgment. It adduces two grounds: (1) that the bond in question only guarantees the performance of the work and not the payment of materials which Casal claims, and (2) that the judgment is void because it is based on the extension of the bond beyond its own terms. Appellant argues that the bond evidently covers only the physical performance of the subcontract, that is, the termination of the railings in the physical sense; that the doctrine of Cristy & Sánchez v. Commonwealth, 84 P.R.R. 226 (1961), is not applicable because it dealt with a statutory performance and payment bond in relation to a public work and the case at bar only deals with a private performance bond so that the doctrine applicable is that of the cases of Batlle v. Pereyó, 67 P.R.R. 621 (1947); Morales v. Chabert, 43 P.R.R. 114 (1932): Subsequent to the decision of the Cristy case, supra, we extended its doctrine to cases of private works in A. L. Arsuaga, Inc. v. La Hood Constructors, Inc., ante, p. 101, where we said that a bond posted by a contractor on behalf of the owner of a private work and in which the payment to the materialmen is stipulated as a condition previous to the liberation of the surety from liability, covers and is liable for the claims of materialmen who have not been paid the amount for the materials supplied for and used in the construction. We expressly reversed Batlle, supra, and Morales, supra, “insofar as they are contrary” to the holding in Arsuaga, supra.
In Gibbs v. Trinity Universal Insurance Company, 330 P.2d 1035 (Okl. 1958), a bond was executed in favor of the owner of a work, to guarantee the faithful performance of
In Glens Falls Indemnity Company v. United States, 229 F.2d 370, 375 (9th Cir. 1955), it was said that the performance bond indemnified R against a failure by IF to fully perform the subcontract, it required W to furnish materials and labor, which included W’s contractual obligation of making timely and full payment for materials going into the work. It was decided that failing to pay for them was just as much a breach of performance of the subcontract as if he had failed to finish the work and that therefore the surety was liable for and was bound under the performance bond to pay for said materials.
In Anchorage Sand & Gravel Co. v. Alaska Dock & Bldrs., 119 F. Supp. 943 (Alaska D.C. 1954), defendant entered into a subcontract with Keney Co. for part of a work. He was required to furnish performance and payment bonds for $30,154 each. He furnished a payment bond for $60,368 in similar terms to those of the case at bar. Plaintiff supplied gravel to defendant. He was not paid for it although the principal contractor paid defendant the partial payments stipulated by the subcontract. The subcontractor and its surety were sued. It was stated that a bond guaranteeing the performance of a subcontract to supply materials and labor implies a promise to pay therefor. Cove Irrigation District v. American Surety Co., 42 F.2d 957 (9th Cir. 1930), cert. denied, 282 U.S. 891 (1930).
In Seaboard Surety Co. v. Standard Acc. Ins. Co., 14 N.E.2d 778 (N.Y. 1938), under a contract to remodel a post office, the contractor entered a subcontract for the
In view of the foregoing, the judgment in this case will be affirmed.
Sections 47, 49 and 51 of 22 L.P.R.A., corresponding to §§ 1, 3 and 5 of the Act, say:
Section 47. “Security for payment of wages and for materials; contractors’ bonds.
“Every contractor who is awarded a contract for the construction, reconstruction, enlargement, alteration, or preparation of any public work, shall post a payment bond in behalf of the Commonwealth of Puerto Rico, which shall be obligatory and effective on and after the date on which the contract is executed.”
Section 49. “Contractor’s obligation as to wages and material.
“The contractor shall be under obligation to pay the salaries and wages of the employees and workers on the work for periods not longer than one week; and to pay punctually, as they fall due,- the bills and invoices presented to him by any natural or artificial persons who have supplied, sold, or delivered materials, equipment, and tools for the work.” (Italics ours.)
Section 51. “Action against contractor, bond, or bondsmen; rights of employees of subcontractor.
“Every person, natural or artificial, who has worked as a worker or employee on, or who has supplied, sold, or delivered materials, equipment, and tools for, the work referred to under section 47 of this title, with regard to which work the bond required by sections 47-58 of this title has been posted, and who has not been paid, in whole or in part, as required by sections 47-58 of this title, his salaries or wages, or the price of the materials, equipment, and tools sold, delivered, or supplied for the work, shall have the right to file suit, without necessity for previous notice, against the contractor, against the bond of the contractor, against the bondsmen of the contractor, or against any of said bondsmen, for recovery of any amount which may for such reason be owing him. Any person or persons who have a direct contractual relationship with a subcontractor on the work and who have or do not have an expressed or implied contractual relationship with the contractor on the work, who has posted the bond, may institute action against the contractor, the bond of the contractor, the bondsmen of the contractor, or against any of the said bondsmen, for the recovery of all or any part of: (1) any amount which may be owed them by the subcontractor for salaries or wages they have earned as employees or workers of the subcontractor on the work; and (2) any amount which may be owed them by reason of their having supplied, sold, or delivered materials, equipment, and tools for the subcontractor on the works. Suppliers or sellers of*722 materials, equipment and tools to the subcontractor shall be obligated, before instituting action against the contractor, his bond, or his bondsmen, to notify the contractor, by registered mail, of their claim. At the expiration of thirty days from the mailing of the said notice they may institute the action herein authorized. Workers and employees of the subcontractor may institute action at any time without previous notice to the contractor of their claim. In all other respects they shall abide by the rights and remedies granted by sections 47-58 of this title to the workers and employees and the suppliers of materials, equipment, and tools, of the contractor and the liabilities imposed by sections 47-58 of this title shall apply to the contractor, his bond, and his bondsmen.”
It is fitting to state that the bond involved in this case was not expressly designated as a “performance bond.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.