Hunt v. King

• Decision Date: 29 January 1896
• Citation: 97 Iowa 88,66 N.W. 71
• Parties: HUNT v. KING ET AL.
• Court: Iowa Supreme Court

97 Iowa 88

66 N.W. 71

HUNT

v.KING ET AL.

Supreme Court of Iowa.

Jan. 29, 1896.

Appeal from district court, Franklin county; S. M. Weaver, Judge.

The defendants, other than George H. King, are John F. Scott, O. F. Dorrance, and some seven others. In 1890, the defendant King entered into a written contract with Franklin county, Iowa, to erect in said county a courthouse, for the agreed price of $40,000, the said King to furnish the labor and materials therefor. The contract contained specifications as to the construction and the payments to be made. To secure the county for the performance of the contract on his part, King executed a bond, with John F. Scott, O. F. Dorrance, and the other defendants as sureties. The plaintiff furnished to King materials for use in the construction of the courthouse, and he is the assignee of other claims for materials so furnished, all of which claims are unpaid, and the defendant King is insolvent. This action is on the bond to recover for the materials so furnished. The petition recites the contract and bond, with other facts, and asks judgment. The defendants, other than King, demurred to the petition, and from a ruling sustaining the demurrer the plaintiff appealed. Affirmed.E. P. Andrews and John M. Hemingway, for appellant.

John T. Scott and J. W. Luke, for appellees.

GRANGER, J.

The contract, after recitals as to the manner of construction of the building, contains the following: “For and in consideration of the faithful performance of the foregoing stipulations by the party of the second part, the party of the first part, said Franklin county, agrees to pay to the party of the second part the sum of forty thousand dollars, as follows: Every fourth Saturday after the commencement of the excavation for said building, and during the continuous erection of said building, the superintendent, as designated by the party of the first part, shall make the estimate of all materials delivered on the premises, or used in the construction, and all labor done on said courthouse building, which estimate shall be in writing, and particularly set forth the items of material and labor furnished and done, which estimate shall be the only voucher for the payment of money to the party of the second part. Twenty per cent. of each estimate shall be retained by the party of the first part until the works are fully completed and accepted by the party of the first part (but in no case shall said estimates exceed the proportionate contract price of said building, and all materials, when estimated, shall become the property of the party of the first part), when all unpaid percentages, or estimates, or other sums that may be due shall be paid; provided that, upon a final settlement, a certificate shall be procured from the...