Herpolsheimer v. Hansell-Elcock Co.

Grant, J. (after stating the facts). There are two complete answers to the claim of the defendant the Han-sell-Elcock Company: 1. This is not a public bond, required by statute of public officials, given for the purpose of protecting laborers and materialmen. It is a private bond, given, not for the benefit of Mr. Herpolsheimer’s creditors, but for his own benefit; and there is no liability upon the bond until Mr. Herpolsheimer has suffered loss and makes a claim under the bond. He has neither suffered loss nor made any claim.- The Hansell-Elcock Company stands in the position of a stranger or volunteer. It trusted the contractors, not Mr. Herpolsheimer. This bond was given and taken as security alone for Mr. Herpolsheimer. The Hansell-Elcock Company, therefore, is in no position to be subrogated to the rights of this contract between Herpolsheimer and the Fidelity Company. 27 Am. & Eng. Enc. Law (2d Ed.), p. 255. The case is within the principle announced in Desot v. Ross, 95 Mich. 81, and authorities there cited. [370] 2. The defendant the Hansell-Elcock Company has no valid lien against the complainant’s building. By the express terms of the contract of suretyship, the surety is not liable unless there are valid existing liens against his estate. It was only such liens as this that the bond of indemnity protects Mr. Herpolsheimer against, and in which defendant the Hansell-Elcock Company could possibly have any interest. Having no .valid lien under the statute, it follows that it has no interest whatever in this private contract of suretyship between complainant and the defendant the Fidelity Company. The decree is affirmed, with costs. Carpenter, McAlvay, Montgomery, and Ostrander, JJ., concurred.