¶1(concurring).
¶2I agree that the opinion of the Supreme Court in Rockwall, cited by the Court, is decisive of this case. That opinion holds that automobile tires sold to a contractor and used on equipment belonging to him were not material furnished the contractor within the meaning of the bond involved in that case. The only reason given by the Court for such holding was that the contractor was obliged to furnish his own equipment. Yet the Court in the same case allowed recovery for gasoline and oil used in cars and trucks used by the contractor on the job.
¶3Just why the obligation of the contractor to furnish his own equipment would defeat the claim for tires for trucks and not defeat the claim for gasoline used in the trucks is not clear to me.
¶4' The reason given by the Supreme Court for its holding is not convincing. The fact that the contractor was required to furnish his own equipment seems to me to be beside the point. The contractor is required to furnish everything which his contract obligates him to furnish. Usually this is all the labor and materials required for the job yet those who furnish the labor and materials to the contractor are certainly within the protection of the statute and the bond given under it.
¶5Appellee has cited several cases which appear to conflict with Rockwall in principle; however, none of these cases involve tires.
¶6After noting that the Court in Rockwall had allowed recovery for gasoline and repairs appellee states “The only logical conclusion to draw from this is that the claimant for the automobile parts, tires and accessories failed to sustain his burden of showing that the articles were 'furnished for and consumed’ in the work.” This, however, is not the reason given by the Supreme Court.
¶7The Court of Civil Appeals, 300 S.W. 148, loe. cit. 157, said that the tires were furnished in the “performance of said contract, and was incident to the performance of said contract, for the building of said road.”
¶8Whether this is the equivalent of finding that the tires were substantially consumed on the job, I do not know. Certainly it is not a contrary finding.
¶9I understand that the bond here is a statutory bond and the bond in Rockwall was a common-law bond. By comparing the terms of the bonds it seems to me that the bond in Rockwall is more comprehensive than the one here, this because of the language or “in any manner incident to the performance” of the contract. See discussion of this provision by the Court of Civil Appeals, 300 S.W. at page 156.
¶10*269Assuming that in Rockwall the tires were consumed or substantially consumed in the performance of the contract then, it seems to me, the holding that they were not covered by the bond in that case is clearly wrong. However this Court must follow the specific holding there made regardless of our views about its validity.