Guard Rail Erectors, Inc. v. Standard Sur. & Cas. Co. of N.Y.
| Decision Date | 07 November 1933 |
| Parties | GUARD RAIL ERECTORS, Inc. v. STANDARD SURETY & CASUALTY CO. OF NEW YORK. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County; Woodbury, Judge.
Debt by the Guard Rail Erectors, Inc., against the Standard Surety & Casualty Company of New York. Transferred without ruling.
Case discharged.
Debt, on a bond given under Laws 1927, c. 88, § 2. The principal obligor had a contract with the state to improve a road in Conway and the plaintiff furnished part of the work as a subcontractor. The court (Woodbury, J.) transferred without ruling the question of the plaintiff's right to maintain the action.
J. Morton Rosenblum, of Manchester, for plaintiff.
James A. Broderick, of Manchester, for defendant.
The statute (Laws 1927, c. 88, § 1) extends the mechanics' lien law so as to give its benefit to those furnishing labor or materials on public work of construction. By section 2 it requires the contractor in certain cases to give a surety bond to pay "all who would have liens under section 1," and subjecting the surety to suit by any lienor. The bond in suit by its terms secured "anyone who, in the absence of the bond, would be entitled to a lien" as provided by the statute cited, and its conditions were that the contractor should perform its contract, pay for all labor and materials furnished in carrying it out, and indemnify the state against liability arising from the contractor's operations.
The defendant's contention is understood to be that the plaintiff was not a lienor, or, if one, did not perfect its lien. It is urged that the plaintiff had no lien because it gave the state no notice of its purpose to claim one before performance of its contract commenced or during or after completion of the contract. The point is not well taken. Notice of the lien is of importance to preserve it, but its creation and existence are not dependent upon notice. The lien arises according to performance of the contract. Boulia-Gorrell Lumber Co. v. East Coast Realty Company, 84 N. H. 174, 177, 178, 148 A. 28, 69 A. L. R. 1200.
As to the plaintiff's failure to preserve its lien, the clear purpose of the statute is that the bond shall be security regardless of enforcement of the lien. It definitely requires the bond to be conditioned to pay "all who would have liens" under the section giving them. Preservation of the lien is not in terms called for. It becomes of no consequence if...
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