Holcombe v. Mattson

Dickinson, J. Action upon a bond executed to the plaintiff by the defendant Mattson as principal and by the other defendants as sureties. The sureties demurred to the complaint. This is an appeal by the plaintiff from an order sustaining the demurrer. Matt-son having undertaken by contract with the plaintiff to erect a building for him, the bond was executed, wherein, after referring to such contract, it was declared, in substance, as a condition of the obligation, that it should be void if said contractor should pay all just claims for work and materials furnished and to be furnished pursuant to the contract and in the execution of the work. The alleged default consists in the failure of the contractor to perform his building contract, and his abandonment of it, whereupon the plaintiff, in accordance with the terms of the contract, took up and completed the unfinished work; and for the expense thus incurred and paid by the plaintiff a recovery is sought on the bond. As respects the construction to be given to the bond, its purpose, and the extent of the obligation, the case is exactly like that of Price v. Doyle, 34 Minn. 400, (26 N. W. Rep. 14,) and that decision covers the ease here presented. The bond was given for the benefit of the plaintiff as the owner of the property, to protect the property against liens in favor of those w'ho might contribute labor or material for the construction of the building. It does not appear that any such liens ever came into existence, or wrere even threatened. It would require a more liberal construction of the condition of the bond than is permissible as against sureties to make it applicable to debts incurred or expenditures made by the plaintiff in carrying on the work after it had been abandoned by Mattson, for whom alone the respondents became sureties. Order affirmed.