It is a common stipulation in a building contract that the contractor will pay all bills for labor and materials. In most cases the fulfilment of this promise by the contractor operates to discharge a liability of the owner of the building, whose building would be liable to satisfy the liens given by the law to workmen and materialmen. It cannot, therefore, be inferred that the promisee requires the promise in order to benefit such creditors of the contractor. The natural inference is that his object is to protect himself or his building. When, however, the owner of the building is a municipality, or county, or State such an inference cannot so readily be justified, for the laws give no liens against the buildings of such owners. In such cases if the stipulation can be regarded as the result of more than the accidental insertion of a provision common in building contracts without reflection as to its necessity, it must be supposed that the object was to benefit creditors of the contractor. This supposition becomes a certainty when the legislature in view of litigation in the courts in regard to the matter enacts that all building contracts made by towns or counties shall contain such a stipulation. Creditors have in some States been allowed not only to take advantage of the promise but to sue the contractor and his sureties upon a bond given by him to secure the performance of his contract.97 Similarly a bond given by a liquor dealer to a municipality to ensure performance by him of the requirements of law has been held enforceable by individuals injured by his failure to observe those require-ments.98 This result can hardly be supported on any other theory than that the bonds are statutory obligations and that the statute though not so providing expressly is to be construed as giving not simply the municipality but also individuals the right to enforce it. In some jurisdictions statutes do expressly so provide.99
96 Allen v. Davison, 16 Ind. 416; Marlett v. Wilson, 30 Ind. 240; Strong v. Marcy, 33 Kan. 109, 5 Pac. 366; Clarke v. McFarland's Exec., 5 Dana, 45; Benge v. Hiatt's Adm., 82 Ky. 666, 56 Am. Rep. 912; Felton v. Dickinson, 10 Mass. 287 (overruled by Marston v. Bigelow, 150 Mass. 45, 22 N. E. 71, 5 L. R. A. 43); Todd v. Weber, 95 N. Y, 181, 47 Am. Rep. 20; Buchanan v. Tilden, 158 N. Y. 109, 52 N. E. 724, 70 Am. St. Rep. 454; Whiteomb v. Whit, comb, 92 Hun. 443, 36 N. Y. S. 607; Baboock v. Chase, 92 Hun, 264, 36 N. Y. S. 879.
See also Lawrence v. Oglesby, 178
111. 122, 52 N. E. 945; and see cases cited supra, Sec. 368.
But in Pennsylvania, though the promise is perhaps enforceable by the beneficiary when the consideration is the transfer of property, it is not if the consideration is anything else. Ed-mundson v. Penny, 1 Barr, 334, 44 Am. Dec. 137. And such is the law of Oregon. Weinhard v. R. R. Thompson Est. Co., 242 Fed. 315; Washburn v. Interstate Investment Co., 26 Oreg. 436, 36 Pac. 533, 38 Pac. 620; Brower Lumber Co. v. Miller, 28 Oreg, 565, 43 Pac. 659, 62 Am. St. 807.
97 King v. Downey, 24 Ind. App. 262, 66 N. E. 680; Baker v. Bryan, 64 Ia. 661, 21 N. W. 83; Des Moines Bridge Works v. Marren, 87 Neb. 684, 128 N. W. 31 (but see Hunt v. King, 97 Ia. 88,66N. W. 71); St. Louis v. Von Phul, 133 Mo. 661, 34 S. W. 843, 54 Am. St Rep. 696 (overruling Kansas City Sewer Pipe Co. v. Thompson, 120 Mo. 218), 25 S. W. 522; Devers v. Howard, 144 Mo. 671, 46 S. W. 626; Glencoe Lime Co. v. Wind, 86 Mo. App. 163; Sample v. Hale, 34 Neb. 220, 51 N. W. 837; Lyman v. City of Lincoln, 38 Neb. 791, 67 N. W. 531; Doll p. Crume, 41 Neb. 656, 69 N. W. 806; Korsmeyer Co. v. McClay, 43 Neb. 649, 62 N. W. 50; Kaufmann v. Cooper, 46 Neb. 644, 65 N. W. 796; Hickman v. Layne, 47 Neb. 177, 66 N. W. 298; King p. Murphy, 49 Neb. 670, 68 N. W. 1029; Rohman v. Gaiser, 53 Neb. 474, 73 N. W. 923; Fickle Marble Co. p. Mc-Clay, 64 Neb. 661, 74 N. W. 1062; Gastonia p. McEntee-Peterson Co., 131 N. C. 363, 42 S. E. 858; Baker City Mercantile Co. v. Idaho Pipe Co., 67 Or. 372, 136 Pac. 23. Contra, Jefferson p. Asch, 63 Minn. 446, 55 N. W. 604, 25 L. R. A. 257, 39 Am.
St. Rep. 618; Union Ry. Storage Co. v. McDermott, 53 Minn. 407, 55 N. W. 606; Buffalo Cement Co. p. McNaughton, 90 Hun, 74, 35 N. Y. S. 453, 156 N. Y. 702, 51 N. E. 1089; 157 N. Y. 703, 52 N. E. 1123; Parker v. Jeffery, 26 Oreg. 186, 37 Pac. 712; Brower Lumber Co. v. Miller, 28 Oreg. 565, 43 Pac. 659, 52 Am. St. Rep. 807; Lancaster p. Prescoln, 203 Pa. 640. See also Montgomery p. Rief, 15 Utah, 495, 50 Pac. 623, and 71 Cent. L. Journal, 429.
An action on the bond presents the difficulty that the creditors who recover not only are not the promisees, but are not the persons who are to receive payment. The promise is to pay the penalty of the bond, not to the creditors, but to the town or county. This difficulty is not much alluded to in the cases. See, however, Jefferson v. Asch, and Buffalo Cement Co. p. McNaughton, supra. In some of the decisions where recovery was allowed, the result was due to statutes.
98Koaki v. Pakkala, 121 Minn. 450, 141 N. W. 793, 47 L. R. A. (N. S.) 183; Lynch v. Brennan, 131 Minn. 136, 154 N. W. 795, L. R. A. 1916 E. 269.