Kaufmann v. Cooper

• Decision Date: 09 January 1896
• Docket Number: 5899
• Parties: M. J. KAUFMANN v. WILLIAM J. COOPER ET AL
• Court: Nebraska Supreme Court

65 N.W. 796

46 Neb. 644

M. J. KAUFMANN v. WILLIAM J. COOPER ET AL

No. 5899

Supreme Court of Nebraska

January 9, 1896

ERROR from the district court of Lancaster county. Tried below before TIBBETS, J.

AFFIRMED.

Guy R C. Read and W. A. Williams, for plaintiff in error.

William Leese and John M. Stewart, contra.

OPINION

HARRISON, J.

The petition in this action stated that on the 29th day of June 1889, Symonds & Blake were awarded and entered into a contract with the state to furnish materials for and perform certain labor upon and about the industrial home at Milford, and executed and delivered to the state a bond for the faithful and full performance of the contract, J. W. Foster and M. J. Kaufmann signing such bond as sureties; that the bond contained the following conditions: "The condition of the above obligation is such that the above bounden Symonds & Blake have been awarded the contract to furnish all the materials and labor and skill necessary to the purpose, and to erect, construct, and fully complete, in a good and workmanlike manner, for the use of the industrial home at Milford, Nebraska, the steam heating, gas fitting, plumbing, ventilation, sewerage, windmill, well, and three cisterns, all to be in strict conformity to the plans, specifications, and detailed drawings now on file in the office of the commissioner of public lands and buildings at Lincoln, Nebraska, and to pay off, in full, all claims that may become due for laborers' and mechanics' wages or for materials furnished in or about said contract. Now if the above bounden Symonds & Blake shall well and truly keep and perform each and every covenant, promise, and agreement contained in said contract at the several times, and in the manner therein stated, and fully pay all claims due for laborers, mechanics, or furnishers of materials, then this obligation to be void; otherwise to be and remain in full force and virtue in law." Copies of the contract, the bond, and an itemized statement of the account for material which the party in whose favor the action was instituted claimed to have furnished, were attached to the pleading. To the action there was but one appearance on the part of the defendants, that of Kaufmann, one of the sureties on the bond. In his answer he denied that the material was furnished to Symonds & Blake or by virtue of the contract with them, or that the fact that the bond existed was any inducement to the plaintiff in the action to extend the credit to the parties to whom it was given, and alleged affirmatively that if the plaintiff furnished any material it was to S. C. Blake & Co., and upon the credit of such firm, and without reference to the contract with Symonds & Blake; that the provision of the bond hereinbefore quoted was exacted wrongfully and contrary to legal right, and hence was void; that the firm of Symonds & Blake assigned its contract to S. C. Blake & Co., which was known to plaintiff, and such assignment was acquiesced in or ratified by the state; that the contract contained a provision that Symonds & Blake were to receive for furnishing the material and performance of labor as therein stated the sum of $ 3,039 "at the times and in the manner following: Eighty-five per cent of the monthly estimates made by the superintendent of construction, as the work progresses; and the balance to be paid when the said contract has been fully completed and tested and accepted by the board of public lands and buildings;" and that a payment was made to plaintiff without any estimate being made by the superintendent of construction, and other and further payments were made so that in the aggregate they amounted to more than eighty-five per cent of the estimates made during the progress of the work, of all of which these plaintiffs had knowledge and approved; that of and to the doing of these things, all and singular, the answering defendant was not informed, had no knowledge, gave no consent, and his discharge as surety was thereby effected. The reply was a general denial. There was a trial and a verdict and judgment for plaintiff. The defendant Kaufmann, of the sureties on the bond, presents the case here for review.

We will first notice the portion of the contention on behalf of the surety Kaufmann, in which it is asserted that he was discharged from any obligations he had assumed as such surety (1) by the payment of $ 500 to the plaintiff without any estimate of the superintendent of construction as a basis or authority for such payment, and (2) by the payment of more than eighty-five per cent of an estimate made of the amount due plaintiff by the superintendent of construction. It may be said in regard to the second of these points that the aggregate sum of eighty-five per cent of an estimate made by the superintendent during progress of the work, of the amount due plaintiff, and the alleged prior payment of $ 500 the basis of the first point mentioned, would make the payments just $ 500 more than the amount of the estimate; or, in other words, it is claimed that $ 500 were paid to plaintiff prior to any estimate made, and that, combining it with the payment made on a subsequent estimate, the whole amount of the payments was in excess of eighty-five...