Benson v. Barrett

• Decision Date: 13 May 1927
• Docket Number: No. 25997.,25997.
• Citation: 214 N.W. 47,171 Minn. 305
• Court: Minnesota Supreme Court
• Parties: BENSON v. BARRETT et al.

214 N.W. 47

171 Minn. 305

BENSON v. BARRETT et al.

No. 25997.

Supreme Court of Minnesota.

May 13, 1927.

Appeal from District Court, Marshall County; Andrew Grindeland, Judge.

Action by Edward H. Benson against Mike Barrett and the Northwestern Casualty & Surety Company of Milwaukee. Judgment for plaintiff, and from an order denying its motion for a new trial, the last-named defendant appeals. Affirmed.

Rockwood & Mitchell, of Minneapolis, for appellant.

Julius J. Olson and Rasmus Hage both of Warren, for respondent.

QUINN, J.

There is no controversy over the facts in this case. On October 20, 1923, the defendant Mike Barrett entered into a contract with the state of Minnesota, acting through the commissioner of highways, C. M. Babcock, for the construction of that part of trunk highway No. 6, designated as "Project 6-39, Sec. 1-A." A contract in the form required by the commission was executed, and a bond with appellant as surety was furnished. On May 13, 1924, Barrett sublet the work to the plaintiff, who performed all the work and services required under Barrett's contract with the state. As the work progressed, estimates and payments thereon were made as provided in the contract. The plaintiff received payments from time to time from Barrett, which were credited upon the subcontract. On November 7, 1925, the commissioner of highways duly accepted the work as having been fully completed and issued his official certificate to that effect. At that time there was due to Barrett, under his contract with the state, the sum of $7,584.80, for which the state issued to him its voucher. On the preceding day, Barrett and the plaintiff checked upon the work done by plaintiff, and it was agreed that plaintiff had earned, according to his contract, the sum of $28,637.65, of which he had received $20,381.23, leaving a balance of $8,256.42 due and unpaid, which, with interest agreed upon between the plaintiff and Barrett, amounted to $8,356.52, the amount allowed by the court.

Plaintiff brought this action against the two defendants as principal and surety on the bond to recover the balance due him for the work performed. Barrett answered, admitting plaintiff's claim. The surety company answered, admitting the execution of the contracts and the bond, but resisted liability, claiming that the notice required by section 9705, G. S. 1923, was not served and that the complaint failed to state a cause of action against it, that the findings of the trial court were no broader than the complaint and therefore insufficient to sustain a judgment against it. From an order denying its motion for a new trial, the defendant surety company appealed.

The statute provides that no action shall be maintained on any such bond unless, within 90 days after the completion of the contract and acceptance by the proper authorities, the claimant shall serve upon the principal and his sureties a written notice specifying the nature and amount of his claim and the date of furnishing the last item thereof, nor unless the action is begun within one year after the service of such notice.

On November 20, 1925, plaintiff mailed to the surety company, at its main office in the city of Milwaukee, a notice stating that the work of construction was completed in the month of September, 1925, that there was due him thereon a balance of $8,356.52, that the same had not been paid, and that he would look to the surety for payment under the bond. While the physical work may have been completed prior to the time stated in the notice, the fact remains that the commissioner of highways accepted the job on November 7, 1925. The statute is silent as to the manner of service of such notice. The surety company is a foreign corporation, and the notice might have been served upon its agent. However, the purpose of the service of such a notice was accomplished. It is not questioned but what the surety company received the notice mailed to it at Milwaukee. The record discloses that, following the mailing of the notice by plaintiff, the surety company corresponded with the bank with which plaintiff transacted his banking, with reference to the nonpayment of the check which Barrett...