Cowdery v. Hahn

• Decision Date: 02 February 1900
• Parties: COWDERY v. HAHN ET AL.
• Court: Wisconsin Supreme Court

105 Wis. 455

81 N.W. 882

COWDERY

v.HAHN ET AL.

Supreme Court of Wisconsin.

Feb. 2, 1900.

Appeal from superior court, Milwauke county; George E. Sutherland, Judge.

Action by Edward G. Cowdery against P. J. P. Hahn and another to recover upon an alleged liability of defendants as sureties upon a bond. From a judgment for plaintiff, defendants appeal. Reversed.

This is an action to recover against the defendants as sureties upon a bond. The facts were practically undisputed, and are in brief as follows: The plaintiff, desiring to build a house, made a contract therefor with Graham Bros., contractors; the same to be built according to plans and specifications made by one Eschweiler, an architect; the full contract price being $3,675. The contract provided that payments were to be made from time to time, in amounts up to 85 per cent. of the value of the material then furnished and the labor then performed; the final payment to be made within 30 days after the contract was fulfilled; all payments to be made upon written certificates of the architect to the effect that such payments have become due. The contract further provided that the contractors should protect the owner from all subcontractors' liens. After the execution of this contract, the defendants signed a bond running to the plaintiff, Cowdery, and conditioned for the faithful performance of the said building contract, and the discharge of all liens upon the building by the contractors. The building contract was executed in June, 1896; and the bond, August 12, 1896. The contractors proceeded to erect the building according to the contract, and in July, 1896, Cowdery paid to the contractor $2,150, upon the architect's certificate. On the 1st of September, 1896, the building was completed, except that the cement floor in the cellar had not been put in, and certain finishing in certain parts of the house had not been completed; the work and materials of such uncompleted portion amounting in all to $275. This being the situation, Graham Bros. applied for the final certificate. Cowdery knew that the house was not yet completed, but told Graham Bros. that he would pay if the architect would give him a certificate; and he admits that he told Eschweiler, the architect, that, if he (Eschweiler) was willing to issue a certificate, he (Cowdery) was willing to pay. Eschweiler testified that Cowdery directed him to issue the certificate. Whatever the fact was on this issue, Eschweiler issued a certificate for the full amount due on the 1st of...