Johnson v. Laurence

• Citation: 214 N.W. 24,171 Minn. 202
• Decision Date: 29 April 1927
• Docket Number: No. 25975.,25975.
• Parties: JOHNSON v. LAURENCE et al.
• Court: Supreme Court of Minnesota (US)

214 N.W. 24

171 Minn. 202

JOHNSON v. LAURENCE et al.

No. 25975.

Supreme Court of Minnesota.

April 29, 1927.

Appeal from District Court, Hennepin County; W. W. Bardwell, Judge.

Action by Albert S. Johnson against Paul A. Laurence and the Union Indemnity Company. From a judgment for plaintiff, the last named defendant appeals. Affirmed.

Herbert T. Park, of Minneapolis, for appellant.

Daniel F. Foley and Lawrence Severson, both of Minneapolis, for respondent.

WILSON, C. J.

The Union Indemnity Company, being a surety on a bond of defendant Laurence for the performance of a building contract with plaintiff, appealed from a judgment.

1. The bond contains this provision "The surety shall be notified in writing of any act on the part of said principal, or his or their agents, and employees, which may involve a loss for which said surety is responsible hereunder, immediately after the occurrence of such act shall have come to the knowledge of said owner, or to any representative duly authorized to oversee the performance of said contract; and a registered letter mailed to the president of the surety at New Orleans, La., shall be the notice required within the meaning of this bond."

The plaintiff did not send a notice to the president of appellant by registered letter or otherwise. On December 14, 1921, plaintiff wrote a letter to appellant addressed to its home office at New Orleans, La., identifying the bond involved and advising that he had paid $6,000 to Laurence and that he was informed that Laurence had failed to pay for materials, involving a loss. Appellant, by letter, acknowledged the receipt of plaintiff's letter and said it had written its agents to give the matter attention. Plaintiff also informed one Kronzer, who issued the bond for appellant, as its attorney in fact, of this situation. Upon the advice of Kronzer, plaintiff withheld the balance of $2,375 from Laurence. The building was finished June 1, 1922, when an action was commenced to foreclose mechanic liens. The summons being served on plaintiff, he informed Kronzer, who sent him to appellant's counsel. The attorney "said that he would take care of it" in behalf of appellant. From December 15, 1921, to September 25, 1925, plaintiff's counsel had a number of conferences, personally and by telephone, with appellant's counsel, who said that he would get hold of Laurence and try to effect a settlement, and expressed a wish that this action should not be commenced as he would make a settlement. In reliance thereon plaintiff's counsel delayed the commencement of the action until July 28, 1924. On January 30, 1924, plaintiff through his counsel wrote appellant demanding that it remove the liens on plaintiff's property for material used in the work involved. On February 8, 1924, appellant answered advising that the letter had been forwarded to its counsel in Minneapolis, and asked plaintiff to take the matter up with him. Plaintiff eventually applied the balance withheld of $2,375 upon the judgment entered in the lien suit and was required to pay on March 14, 1924, an excess of $5,543.73. Appellant learned in season from plaintiff all it was entitled to get through a registered letter to its president, and it acted thereon. It made no objection to a failure to literally comply with this provision of the contract until the case was tried.

Upon such record we hold that appellant waived the requirement that the notice be sent to its president or that it be sent by registered mail. Ceylon Farmers' Elev. Co. v. Fid. & Dep. Co., 163 Minn. 280, 203 N. W. 985; Reilly v. Linden, 151...