Great N. Ry. Co. v. Akeley

• Decision Date: 09 January 1903
• Citation: 92 N.W. 959,88 Minn. 237
• Parties: GREAT NORTHERN RY. CO. v. AKELEY.
• Court: Minnesota Supreme Court

88 Minn. 237

92 N.W. 959

GREAT NORTHERN RY. CO.

v.AKELEY.

Supreme Court of Minnesota.

Jan. 9, 1903.

Appeal from district court, Hennepin county; A. M. Harrison, Judge.

Action by the Great Northern Railway Company against H. C. Akeley. Judgment for plaintiff. From an order denying a new trial, defendant appeals. Affirmed.

Syllabus by the Court

1. Where a surety in a contract of indemnity against liens resulting from the failure of his principal, a building contractor, to pay debts incurred in the construction of a building, is notified of an action against the obligee to enforce such liens, and assumes charge of and conducts the litigation to its final determination, the judgment therein is final and conclusive against him as to the nature and extent of the liability of the obligee. James A. Kellogg, for appellant.

W. E. Dodge, Rome G. Brown, and Charles S. Albert, for respondent.

BROWN, J.

Appeal by defendant from an order denying a new trial after trial and judgment for plaintiff. The facts are as follows: On September 19, 1891, one Maxfield entered into a contract for the erection and construction of a depot building for the Great Northern Railway Company at Willmar, this state; said Maxfield agreeing, by his contract, to furnish all labor and material used in the construction of the same. To indemnify the railway company from any liens and claims resulting from the failure or neglect of Maxfield to perform fully and completely his contract, and to pay and discharge all debts for material used in the performance of the same, he executed to the railway company a bond conditioned accordingly, with defendant in this action as surety. Maxfield contracted with Ring & Tobin for certain materials, which were furnished by them and delivered to him on the 1st of November, 1891. The material so furnished was put into the building, which was completed some time in February, 1892, but the architect, who had general supervision of the work, declined to accept the same because the material furnished by Ring & Tobin was not in accordance with the plans and specifications. Whereupon, on the 18th of February, 1892, Ring & Tobin furnished other material to take the place of that which was claimed to be not in accordance with the contract. The material first furnished was removed, and that subsequently furnished put in its place. Within 90 days after this latter date, as the trial court found, Ring & Tobin duly perfected a mechanic's lien upon the building for the value of the material furnished, and for which Maxfield had failed and neglected to pay. Subsequently an action was brought to foreclose that lien, resulting in a judgment in favor of Ring & Tobin, to the effect that their claim was a valid lien; and the railway company was compelled, as a result of the action, to pay the same. The company then brought this action upon Maxfield's bond to recover the amount so paid by them to discharge the lien. The court below found not only that the lien of Ring & Tobin was duly perfected within 90 days from the date of the last item of material furnished by them, but that, when the action to foreclose the lien was commenced by the railway company, that company gave notice to defendant Akeley, surety on Maxfield's bond, of its commencement; demanding of him to defend the action in the name of the railway company, and protect the company from the claim made by Ring & Tobin. Akeley thereupon, through his attorney, appeared in the action, and relieved the defendant therein of any responsibility in reference to the litigation, and thereafter conducted the same to its final determination. As already stated, the litigation resulted in a judgment against the railway company, and...