This is a summary judgment proceeding. Respondent furnished materials used by the contractor in the construction of certain public works at Love Field Airport of the City of Dallas. Its claim therefor being unpaid, Respondent sued Clarence H. Everett & Co. Inc., the contractor to whom the materials were furnished, and Petitioner, the surety for the contractor on the payment bond executed pursuant to Article 5160,
In Mundy v. Knutson Construction Co., 156 Tex. 211, 294 S.W.2d 371 (1956) we reaffirmed the rule previously recognized as settled law in Wm. Cameron & Co. Inc. v. American Surety Co., 55 S.W.2d 1032 (Tex.Com.App.1932) that attorney's fees are not recoverable either in an action in tort or a suit upon a contract unless provided by statute or by contract between the parties. See also Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex. Sup.1962), and cases there cited, stating the rule that statutory provisions for the recovery of attorney's fees are in derogation of the common law, are penal in nature and must be strictly construed. In Mundy we found the requisite contractual provision in the broad language of a surety bond requiring the payment of "all costs and expenses" which might be incurred in the prosecution of a suit for a breach of the construction contract or on the surety bond itself. But no comparable provision is contained in the payment bond upon which this suit is based,
The McGregor Act itself, Article 5160, does not provide for the recovery of attorney's fees in event of suit against the principal and surety on the payment bond. This is in contrast to explicit provisions for the recovery of attorney's fees in the somewhat related lien bond statutes, Articles 5472b-1, 5472c, 4a and Article 5472d, subd. 6. Moreover, the bond required by Article 5160 is to be "in the amount of the contract" and the suit authorized by the statute is "for the amount due on the balance thereof unpaid at the time of filing the claim or of the institution of the suit."
Under the limited coverage of its provisions, Article 2226 has no application to the claim of an unpaid materialman against the surety on an Article 5160 payment bond. The claim and ensuing suit are grounded entirely on the surety obligation. The material was furnished not to the surety but to the contractor-principal. Cf. F. & C. Engineering Co. v. Moore, 300 S.W.2d 323 (Tex.Civ.App.1957), error ref. n. r. e.; Mercantile National Bank at Dallas v. McCullough Tool Co., 250 S.W.2d 870, 878 (Tex.Civ.App.1952), rev'd other grounds 152 Tex. 471, 259 S.W.2d 724 (1953); Standard Accident Ins. Co. of Detroit v. Smith Perry Elec. Co., 373 S.W.2d 97 (Tex.Civ.App.1963), error ref. n. r. e. with per curiam opinion, 376 S.W.2d 335 (Tex.Sup.1964). Respondent forcefully argues that Article 2226 can be extended by implication to include the claim against the surety by reading this statute with Article 5160 which was enacted for the purpose of guaranteeing full and prompt payment to labor and material claimants on public works projects. But we cannot thus supply by implication the necessary statutory basis for an award of attorney's fees. Such must be found in the terms of the legislative enactment.
The judgment of the Court of Civil Appeals is reversed and judgment is rendered for Petitioner.
Now, therefore, if the principal shall well, truly and faithfully perform its duties and make prompt payment to all persons, firms, subcontractors, corporations and claimants supplying labor and material in the prosecution of the work provided for in said contract, and any and all duly authorized modification of said contract that may hereafter be made, notice of which modification to the surety is hereby expressly waived, then this obligation shall be void; otherwise to remain in full force and effect."
"A. * * * (b) A Payment Bond, in the amount of the contract, solely for the protection of all claimants supplying labor and material as hereinafter defined, in the prosecution of the work provided for in said contract, for the use of each such claimant.
"B. Every claimant who has furnished labor or material in the prosecution of the work provided for in such contract in which a Payment Bond is furnished as required hereinabove, and who has not been paid in full therefor, shall have the right, if his claim remains unpaid after the expiration of sixty (60) days after the filing of the claim as herein required, to sue the principal and the surety or sureties on the Payment Bond jointly or severally for the amount due on the balance thereof unpaid at the time of filing the claim or of the institution of the suit; * * *."