Ihk v. Duluth City

• Decision Date: 13 July 1894
• Docket Number: No. 8688.,8688.
• Citation: 58 Minn. 182
• Parties: CHARLES IHK <I>vs.</I> DULUTH CITY.
• Court: Minnesota Supreme Court

58 Minn. 182

CHARLES IHK vs. DULUTH CITY.

No. 8688.

Supreme Court of Minnesota.

Argued June 28, 1894.

Affirmed July 13, 1894.

Appeal by plaintiff, Charles Ihk, from a judgment of the District Court of St. Louis County, Charles L. Lewis, J., entered January 25, 1894, that he take nothing by his action.

On July 15, 1890, Forrestal Bros. contracted with the defendant the City of Duluth, to curb and pave Fourth Street in that city between Fifth Avenue west and Sixth Avenue east, and to furnish and pay for all labor and material used in the work. They gave the city a bond with two sureties in the penal sum of $16,000 conditioned to be void if they performed the work and paid for the labor and material. They failed to perform and they and one of their sureties on the bond became insolvent. On September 25, 1890, they assigned their contract to Henry H. Bell the other surety on their bond and transferred to him the material on hand and all their claims against the city. He accepted and carried on the work for over a year but also became insolvent and made a general assignment of all his nonexempt property for the benefit of his creditors. The Board of Public Works of the city by resolution passed March 5, 1891, formally consented to the transfer to Bell. The total actual cost of the work was $48,983.12. Less than $1,500 of the work had been done when Forrestal Bros. assigned their contract to Bell. He gave no new bond for the performance of the work or for the payment of claims for labor or materials, nor did the city or the board demand one. Between October 1, 1890, and October 1, 1891, plaintiff furnished Bell with cedar blocks to be used and which were used by him in the work to the value and of the agreed price of $3,690, no part of which has been paid. Plaintiff brings this action against the city to recover of it that sum, on the ground that it failed to require and obtain of Bell a bond as provided by its charter. Sp. Laws 1887, ch. 2, subch. 5, § 5. The defendant answered and the issues were tried April 29, 1893. The court made findings of these facts and ordered judgment for defendant on the ground that the obtaining of such bond was not a municipal duty. Judgment was entered on the findings and plaintiff appeals.

Austin N. McGindley, for appellant.

Page Morris, for respondent.

GILFILLAN, C. J.

The charter of the defendant provides (Sp. Laws 1887, ch. 2, subc. 5, § 5) that, whenever the board of public works shall award a contract for making any of the improvements mentioned in the subchapter, the person to whom it is awarded shall furnish to the city a bond with sufficient sureties, to be approved by the board of public works, conditioned that he will execute the work for the price mentioned in the bid, and according to the plans and specifications, and that he will pay for all labor done and material furnished for said improvement.

As held in State Bank of Duluth v. Heney, 40 Minn. 145, (41 N W. 411,) an action on the bond, even to enforce the claims for labor and material, must be brought in the name of the city. For that purpose it...