#### CITY OF ALPENA, *for use of*GILCHRIST, *v.*TITLE GUARANTY & SURETY CO.

Municipal Corporations — Bonds — Mechanics and Material-men — Fuel.

Coal used for fuel to operate a dredge that a municipal contractor employed in digging a trench for an intake pipe of the municipal waterworks, was not covered by the statutory bond of the contractor “ against all claims due from said contractor or other subcontractors under them, which may accrue to any person, firm, or corporation on account of any labor performed or materials furnished under and by virtue of this contract.”

Error to Alpena; Emerick, J.

Submitted November 31, 1911.

(Docket No. 157.)

Decided January 23, 1912.

Assumpsit by the city of Alpena for the use of Frank W. Gilchrist against the Title Guaranty & Surety Company and others on a statutory bond. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.

Affirmed.

*Henry & Henry,*for appellant.

*Luman W. Goodenough*and *Irvin Long,*for appellees.

Blair, J.

The facts essential to a decision of the issues involved in the above-entitled cause have been previously litigated in this court, and the bond and contract sued upon have been heretofore presented for adjudication to this court. We refer to the cases of *City of Alpena, for use of Besser,*v. *Title Guaranty & Surety Co.,*159 Mich. 329 (123 N. W. 1126), *City of Alpena, for use of O'Brien,*v. *Title Guaranty & Surety Co.,*159 Mich. 334 (123 N. W. 1127), and *City of Alpena, for use of Beaudrie,*v. *Murray Co.,*159 Mich. 336 (123 N W. 1128).

*351The action in this case was brought by the city of Alpena, for the use of F. W. Gilchrist, as assignee of certain creditors, against the Murray Company and the Title Guaranty & Surety Company, to recover from the defendant Surety Company for material furnished and labor performed for the Murray Company under a contract with the city of Alpena for the construction of the city waterworks. In conjunction with the contract was a bond executed by the defendant the Title Guaranty & Surety Company, of Scranton, Pa. By this bond the Title Guaranty & Surety Company undertook—

> “To indemnify and save harmless the said city of Alpena, the city council, and officers thereof, as herein stipulated, and to save harmless the people of the State of Michigan against all claims due from said contractor, or other subcontractors under them, which may accrue to any person, firm, or corporation on account of any labor performed or materials furnished under and by virtue of this contract.”

One of the assignors of Gilchrist was the M. N. Bed-ford Coal Company. As indicated in the contract, one part of the work to be performed was the laying of an intake pipe. To lay such an intake pipe it was necessary that a trench be dug, and for this purpose a dredge was used by the Murray Company. The M. N. Bedford Company furnished to the Murray Company quantities of coal at various times during March and April, 1905. This coal was furnished the Murray Company for fuel to be used on the dredge. No payments were made upon the account between Bedford and the Murray Company, and the present action is brought upon the coal so furnished.

The sole question presented for our determination is, as stated in the brief for appellant:

> “Whether or not the bond executed by the Title Guaranty & Surety Company constituted an undertaking on the part of the Surety Company to insure the payment to the M. N. Bedford Company of the coal furnished for fuel for the dredge in the construction of the waterworks system.”

*352The trial judge answered this question in the negative and directed a verdict for defendant. His ruling is in accordance with our decision in the case of *City of Alpena, for use of Besser,*v. *Title Guaranty & Surety Co.,*159 Mich. 329 (123 N. W. 1126). In that case the court cited with approval *Philadelphia*v. *Malone,*214 Pa. 90 (63 Atl. 539), which involved the precise question before us in this case.

The judgment is affirmed.

Steers, McAlvay, Brooke, and Bird, JJ., concurred.