Barnes v. Hampton, 40925
| Decision Date | 30 March 1977 |
| Docket Number | No. 40925,40925 |
| Citation | 252 N.W.2d 138,198 Neb. 151 |
| Parties | Margaret BARNES, Appellant, v. Fred HAMPTON * and James A. McMeekin, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Upon payment of the obligation of the principal, a surety is subrogated to the rights of the creditor against the principal.
2. Unless otherwise agreed, there is no privity of contract between an owner and a subcontractor.
3. A surety, which is subrogated to the rights of the principal against a third person, takes the rights subject to all defenses which the third person had as against the principal.
Michael O. Johanns, Peterson, Bowman, Coffman & Larsen, Lincoln, for appellant.
Stewart & Stewart, Lexington, Vance E. Leininger, Columbus, for appellees.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.
In 1968 the Nebraska Construction Company of Elwood, Nebraska, entered into a contract to construct certain improvements for Sanitary and Improvement District No. 1 of Stanton County, Nebraska. General Insurance Company of Nebraska was the surety on the performance bond furnished by the construction company.
The construction company subcontracted a part of the work, water mains and services, to the defendant, Fred Hampton. After the work was completed the improvement district sued the construction company and its surety for defective work performed by Hampton. That action was settled by payment of $12,750 to the improvement district.
This action was commenced on March 25, 1974, by the construction company and its surety to recover the amount paid to the improvement district and the cost of defending the action brought by the improvement district. The plaintiff, Margaret Barnes, is the assignee of the construction company and its surety and was substituted as plaintiff.
The defendant Hampton moved to dismiss on the ground the construction company had been dissolved on August 3, 1971, and the action was not brought within the 2-year limitation period provided in section 21-20,104, R.R.S.1943. The plaintiff then moved to strike the motion to dismiss on the ground the issue could not be raised by motion but had to be raised by answer. The trial court sustained the motion to dismiss, overruled the motion to strike, and dismissed the action. The plaintiff has appealed. There is no issue concerning the dismissal of the action as to James A. McMeekin, a second defendant.
The plaintiff contends section 21-20,104, R.R.S.1943, was not applicable to the surety because the surety was subrogated to the claim of the improvement district and was an entity separate from the construction company which was dissolved.
Upon payment of the obligation of the...
To continue reading
Request your trial
-
Kobbeman v. Oleson
...assignors grant no greater rights than they possess. Gilbert v. United Nat'l Bank, 436 N.W.2d 23, 25 (S.D.1989); Barnes v. Hampton, 198 Neb. 151, 252 N.W.2d 138, 139 (1977); Smith v. Brown, 513 N.W.2d 732, 733-34 (Iowa 1994); 6B Appleman, Insurance Law and Practice § 4271, at 138 (1979). "[......
-
Motor Club Ins. Ass'n v. Fillman
...rights are subrogated." Gilbert v. First National Bank, 154 Neb. 404, 415, 48 N.W.2d 401, 408 (1951). See, also, Barnes v. Hampton, 198 Neb. 151, 252 N.W.2d 138 (1977), disapproved on other grounds, Van Pelt v. Greathouse, 219 Neb. 478, 364 N.W.2d 14 (1985); American Surety Co. v. School Di......
-
Lindsay Mfg. Co. v. Universal Sur. Co.
...contract between a subcontractor and a landowner who employs the general contractor who hired the subcontractor. See, Barnes v. Hampton, 198 Neb. 151, 252 N.W.2d 138 (1977), disapproved on other grounds, Van Pelt v. Greathouse, 219 Neb. 478, 364 N.W.2d 14 (1985); Boyd v. Benkelman Public Ho......
-
Van Pelt v. Greathouse, 84-089
...§ 21-20, 104 as a statute of limitations, is disapproved, as is any such suggestion which may be contained in Barnes v. Hampton, 198 Neb. 151, 252 N.W.2d 138 (1977). Brian Cook of O'Brien, Huenergardt & Cook, Kimball, for Robert W. Mullin of Van Steenberg, Brower, Chaloupka, Mullin & Holyok......