Fid. & Deposit Co. of Md. v. Madson

• Decision Date: 14 October 1930
• Citation: 202 Wis. 271,232 N.W. 525
• Court: Wisconsin Supreme Court
• Parties: FIDELITY & DEPOSIT CO. OF MARYLAND v. MADSON ET AL.

202 Wis. 271

232 N.W. 525

FIDELITY & DEPOSIT CO. OF MARYLAND

v.MADSON ET AL.

Supreme Court of Wisconsin.

Oct. 14, 1930.

Appeal from a judgment of the Circuit Court for Eau Claire County; James Wickham, Judge.

Action by the Fidelity & Deposit Company of Maryland against Nels Madson and another. From a judgment in favor of plaintiff, named defendant appeals.--[By Editorial Staff.]

Affirmed.

See, also, 231 N. W. 170.

Action begun February 15, 1928; judgment entered June 6, 1929. Suit upon contract of indemnity. The defendants Madson and Zwickey entered into a certain indemnity agreement by which they agreed to indemnify the plaintiff against loss as surety on such bonds as Steiner & Bergman, who were contractors, might from time to time require in their business. Subsequently, while the agreement was in force, plaintiff became surety for Steiner & Bergman upon two bonds which they were required to give to secure performance of two certain concrete bridge contracts which they entered into, one with Dunn county and the other with Pierce county, Wis. After Steiner & Bergman performed part of the work, they defaulted on each of the contracts. The respective counties caused the work to be completed at the expense of the contractors and of plaintiff as surety, with the result that plaintiff was required to pay under its bond to Dunn county the sum of $6,148.44 and under its bond to Pierce county the sum of $479.49. Demand for reimbursement was made upon the defendants. Upon their failure to pay, suit was begun. Two causes of action were set up in the complaint, one arising under the bond for the Dunn county job and the other under the bond for the Pierce county job. No issue was made as to liability on account of the Pierce county contract. A trial was had, resulting in a judgment in favor of the plaintiff on both causes of action. From the judgment entered accordingly, the defendant Madson appeals.Farr & MacLeod, of Eau Claire, for appellant.

Bundy, Beach & Holland, of Eau Claire, for respondent.

ROSENBERRY, C. J.

[1] No bill of exceptions was settled in this case. The only question open for review is whether or not the judgment is supported by the findings of fact. Ellis v. Frawley, 165 Wis. 381, 161 N. W. 364;Hoff v. Hackett, 148 Wis. 32, 134 N. W. 132;Kassuba Commission Co. v. Blodgett, 155 Wis. 529, 143 N. W. 1060, 145 N. W. 177.

We cannot state the facts necessary to a consideration of the questions raised any more briefly than in the language of the findings. After making the necessary statement of the nature of the contract, the execution of the indemnity agreement, the court found:

“3. That the work, other than the construction of the bridge, included in said contract, consisted of the removal of a mill dam owned and operated by C. O. Larson & Sons, and the building of a new mill dam in the place of the one removed; that said road was so located that said bridge could not be constructed at that location without materially interfering with said mill dam, and because of that situation the estimated cost of the mill dam work was agreed upon between the parties, was paid for by said C. O. Larson & Sons and the money so paid was applied on the contract price to pay for that portion of the work.”

“7. That after said contractors abandoned their work under said contracts and were in default in the performance thereof, the proper officers of said counties and of the Wisconsin Highway Commission caused the work under each contract to be performed and completed at the expense of said contractors and the surety on said bond, applied thereon, the unpaid balance of the contract price on the respective contracts and collected from said surety, the plaintiff, the money necessary to complete said work.”

“11. That all of said contracts and trans actions on the part of Dunn County, Wisconsin Highway Commission and the plaintiff, and their respective officers and agents, were entered into, done and performed in good faith without any misrepresentation or fraud on their part.”

The court found as a conclusion of law:

“That the fact that private work was included in the contract for the construction of the bridge in Dunn County and the estimated and agreed cost thereof paid for by the private parties who received the benefit thereof, when said private work was necessarily included with the public work because of the nature and location thereof, did not render said contract invalid and does not constitute any valid defense of the defendants under their indemnity agreement.”

And, further, that the fact that the bond given by the principal contractors and upon which the plaintiff was a surety, although in form a bond in which the village of Colfax was named as...