Des Moines Bridge & Iron Works v. Marxen & Rokahr

Root, J. This is an action prosecuted by a subcontractor upon an undertaking executed by a contractor and his bondsman. The plaintiff prevailed, and the defendants appeal. . The defendants Marxen & Rokahr, in a contract with Seward county, agreed to furnish the material, machinery, appliances and labor necessary for the construction of, and to construct, equip and fully build, a courthouse according to plans and specifications attached to said, contract and made a part thereof. The contract provided that Marxen & Rokahr should furnish to the supervising architect of the courthouse and to the county, before progress certificates should be issued by the architect or partial payments be made for the work as it progressed, a receipt in full to that date from the parties who had furnished material for said building, and from all mechanics and laborers for work and labor performed upon the structure. It is also provided in the contract: “Before final settlement, or at any time the proprietor may demand, the contractor must settle all accounts for material delivered or work performed, as per his respective agreements for such material or labor, before further progress certificates are granted or payments of money [686] are made on the contract.” At the time the contract was made the defendants Marxen & Rokahr and the Title Guaranty & Trust Company executed to Seward county a bond in the sum of $30,000 conditioned: “That if the said Marxen & Rokahr shall well and truly keep and perform all the conditions of this contract on their part to be kept and performed, and shall indemnify and make payment and save the said Seward county harmless as therein stipulated, then this obligation shall be of no effect,” etc. The plaintiff furnished Marxen & Rokahr material that was used in the construction of the courthouse. Marxen & Rokahr failed to pay a large part of the plaintiff’s claim, and the board of supervisors by resolution called upon them to pay the plaintiff’s bill and any other valid unpaid claims on account of the construction of the courthouse. The defendant the Title Guaranty & Trust Company contends there is no proof that the bond was approved by the board of supervisors of Seward county, and for that reason the undertaking did not become a valid obi igation. In so far as the plaintiff is concerned, the bond is a common law obligation, and a formal approval is not necessary for the purposes of this action. The trust company admits in its answer that the bond was executed and delivered, and its argument is not well taken. In exhaustive, well-reasoned arguments in the briefs and at the bar, the defendants contend that since the plaintiff is not named in the undertaking, and the contracting parties did not know when the bond was executed, that the Des Moines Bridge & Iron Works would furnish any material to Marxen & Rokahr, and because the county of Seward, the obligee in the bond, is under no legal or equitable obligation to the plaintiff or to any other materialman or subcontractor, this action cannot be maintained, but that the undertaking should be construed merely as a statutory bond for the protection of laborers and mechanics. It may be conceded that many authorities sustain the argument advanced, but an opposite conclusion was announced by this court in Sample & Son v. [687] Hale, 34 Neb. 220; Lyman v. City of Lincoln, 38 Neb. 794; Doll v. Crume, 41 Neb. 655; Kaufmann v. Cooper, 46 Neb. 644; Korsmeyer Plumbing & Heating Co. v. McClay, 43 Neb. 649; and Morton v. Harvey, 57 Neb. 304. The controlling facts in Lyman v. City of Lincoln, supra, are parallel with tbe facts in tbe instant case. Counsel suggest that tbe argument made by them in the case at bar was not presented to this court in tbe cases just cited. While tbe opinions may not advise tbe reader that the court received tbe benefit of an argument along tbe lines pursued by defendants’ counsel in tbe instant case, tbe briefs filed in Doll v. Crume, supra, show that such an argument was made with great force and learning. It is apparent, therefore, that tbe court was duly advised concerning tbe principles now contended for by defendants’ counsel. It is better that tbe law with respect to contracts should be certain than that it should in all particulars conform to tbe views of tbe courts of some of our sister states. The defendants in the case at bar must have contracted with reference to tbe law as announced in tbe cited cases, and tbe defendant bonding company must have known that it was assuming an obligation to pay tbe subcontractors and materialmen as well as tbe laborers and mechanics engaged in constructing tbe courthouse referred to. The plaintiff in contracting to furnish material for tbe courthouse also bad a right to rely upon tbe law repeatedly stated by this court, and should not be deprived of tbe defendants’ obligation to pay for that material because a like bond could not be enforced in tbe state of New York. We are not convinced that we should overrule a long line of our decisions, and shall not do so in tbe instant case. City of Wahoo v. Nethaway, 73 Neb. 54. Counsel for tbe defendants argue that the principle they are contending for was recognized in tbe opinion of Judge Holcomb in Frerking v. Thomas, 64 Neb. 193. It is true that tbe New York cases were referred to with approval in Frerking v. Thomas, supra, but that case does not in [688] volve a contract like the one considered in the instant case or those construed in Sample & Son v. Hale and Lyman v. City of Lincoln, supra; nor was there any intention on our part in accepting Judge Holcomb’s opinion to discredit the law announced in the cited cases. The defendant bond company’s undertaking was given for the benefit of the materialmen who might furnish materials for the construction of the courthouse, as well as for the protection of the laborers and mechanics who should work upon that building. The bond company contends that it should be released from all liability because-the county did not require Marxen & Rokahr to produce receipts showing that the materialmen and laborers had been paid for material furnished and for services performed, and alleges that payments were made in excess of the 85 per cent, provided for in the contract. The plaintiff had no control over the board of supervisors, and the conduct of that board will not prejudice the plaintiff’s right to sue the bond. Doll v. Crume, 41 Neb. 655; Getchell & Martin Lumber & Mfg. Co. v. Peterson & Sampson, 124 Ia. 599; People v. Banhagel, 151 Mich. 40. Finally, the bond company urges that it is a surety for Marxen & Rokahr, and that the clerk should have so certified upon the judgment record conformable to section 511 of the code. The judgment first entered was joint and several against all of the defendants. The bond company subsequently moved the court to modify the judgment, and in its motion set out the form of journal entry it desired the clerk of the court to make. The court sustained the motion, and the record was modified according to the suggestions made by said defendant. We think, under the circumstances, the bond company should not be heard to' complain. Drexel v. Pusey, 57 Neb. 30. There is no conflict in the evidence concerning the amount due the plaintiff from Marxen & Rokahr on account of the material furnished for the Seward county-courthouse. The trial judge followed the law as announced years since by this court. There is no error in [689] the record prejudicial to the defendants, and the judgment of the district court is Affirmed. Reese, C. J., not sitting.