Steffes v. Lemke

Gileillan, C. J. These actions were brought against Bruecker, the contractor, as principal, and the other defendants as sureties, in a bond executed by them to Gardner S. Moore, as owner, conditioned that Bruecker would pay all just claims for work done and to be done, and all material furnished and to be furnished, pursuant to a contract between Moore, as owner, and Bruecker as contractor, for the construction of a certain building, and in the execution of the work therein provided for as they should become due, which bond was made and filed under Gen. St. 1878, c. 90, § 3, in order to prevent a lien attaching to such building for the work so done and material so furnished. The bond is joint and several. The plaintiffs are mechanics who worked for Bruecker in doing the work required by his contract. The plaintiffs had-judgment below, and the cases come here on bills of exceptions. There are 20 assignments of error, some too trivial to require specific mention. All that need be particularly referred to may be grouped under a few heads. First. As to who need be made parties defendant. The language of the statute is too explicit to admit of a question: “Persons severally liable upon the same obligation or instrument * * * may all or any of them be included, in the same action." Gen. St. 1878, c. 66, § 36. This means nothing else than that the plaintiff may bring his action against all or one or more of the persons so severally liable. This bond, being joint and several, comes within the rule thus expressed. Second. In an action on the bond it is immaterial what interest in the land the nominal obligee in the bond may have. The obligors cannot be permitted to allege want of title to the land in such nominal obligee, for the purpose of defeating those who, on the security of the bond, have furnished material for and done labor in doing the [29] work referred to in it. It is enough for them that the bond is executed by the contractor (with sureties) to the person who as owner has contracted to have the building constructed. As they seek no lien on the building nor on the land, and could not have it if they did seek it, the condition of the title is immaterial to them. The obligation of the bond is absolute to “pay all just claims for all work done and to be done, and all materials furnished and to be furnished,” and is not in any way dependent on the question whether the persons doing the work or furnishing the material would, but for the bond, have had a lien, nor is it in any way limited by the extent or value of such lien. This disposes of several of the assignments of error. Such a bond being executed and filed, the principal obligor and the nominal obligee cannot, either by agreement or act, affect the right or interest of the parties really interested in and secured by it, to wit, those doing work on, or furnishing material for, the building. Without the consent of those parties, they cannot discharge it, nor impair its obligation. It is true such work must be done and material furnished pursuant to — that is, in fulfilment of — the contract between the owner and contractor. Whether and how far the terms of the original contract existing when the bond was executed may be changed by them, the building to be constructed continuing substantially the one originally contracted for, without affecting the claims of those doing work and furnishing material, it is unnecessary to decide. Certainly a mere extension of the time to complete the contract would have no such effect. The work and material would still be done and furnished in fulfilment of the original contract. If the bond were for the performance of that contract, an agreement between the principals, without the consent of the sureties, extending the time for its performance, or changing any of its material terms,might have the effect to discharge the sureties. But this is no such bond. It is not conditioned that the contractor will perform his contract to construct the building, but that he will pay for all labor and material which, to fulfil that contract, he employs or procures. Judgments affirmed.