Hribar v. Johnson

• Decision Date: 07 May 1957
• Parties: Leo HRIBAR, doing business as Hribar Trucking Co., etc., Appellant, v. Eugene JOHNSON, doing business as Johnson's Trucking Co. et al., Respondents. WAUKESHA BLOCK CO., Inc., a Wis. corporation, Appellant, v. Eugene JOHNSON, doing business as Johnson's Trucking Co. et al., Respondents. WAUKESHA BLOCK CO., Inc., a Wis. corporation, Appellant, v. DONLEN TRUCKING SAND AND GRAVEL CO., Inc., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 130

83 N.W.2d 130

275 Wis. 610

Leo HRIBAR, doing business as Hribar Trucking Co., etc., Appellant, v. Eugene JOHNSON, doing business as Johnson's Trucking Co. et

al., Respondents.

WAUKESHA BLOCK CO., Inc., a Wis. corporation, Appellant, v. Eugene JOHNSON, doing business as Johnson's Trucking Co. et

al., Respondents.

WAUKESHA BLOCK CO., Inc., a Wis. corporation, Appellant, v. DONLEN TRUCKING SAND AND GRAVEL CO., Inc., et al., Respondents.

Supreme Court of Wisconsin.

May 7, 1957.

A. L. Tilton, Milwaukee, for appellants.

Bendinger, Hayes & Kluwin, Bernard J. Hankin, Milwaukee, for respondents.

WINGERT, Justice.

These are companion cases to Knuth v. Fidelity & Casualty Co. of New York, Wis., 83 N.W.2d 126, and are governed by the decision in that case. The four cases were heard together in the circuit court, and in each case the court sustained the demurrer of the Fidelity and Casualty Company of New York to the complaint and entered judgment dismissing the complaint as to that company. The appeals were argued together and the parties have stipulated that they involve the same questions of law.

Each case involves a contract by a dealer in sand and gravel to furnish those commodities to the city of Milwaukee, to which contract the Fidelity and Casualty Company of New York was a party, and by sec. 10 of which Fidelity guaranteed performance of the contract by the dealer, and also agreed to 'promptly make payment to each and every person or party entitled thereto of all the claims for work or labor performed and material furnished for or in or about this contract.' In all material respects the contract is the same as that in the Knuth case. Each of the plaintiffs asserts an unpaid claim against the principal contractor (the dealer) and seeks recovery thereof from Fidelity by virtue of the quoted provision of sec. 10.

In the Hribar case, plaintiff's claim is for trucking services furnished to the principal contractor, while in the Waukesha Block Co. cases the plaintiff claims the price of gravel sold by it to the principal contractor. While the complaints are not clear on the point, the parties and the court appear to have assumed that Hribar's trucking services were related to and in aid of performance of the principal contractor's obligation to the city under the contract, and that the gravel sold by Waukesha Block Co. to the principal contractor went to the city under the contract. For present purposes we accept that interpretation. Thus...