Kiewit v. Carter

• Decision Date: 04 January 1889
• Citation: 25 Neb. 460,41 N.W. 286
• Parties: KIEWIT v. CARTER.
• Court: Nebraska Supreme Court

25 Neb. 460

41 N.W. 286

KIEWIT

v.CARTER.

Supreme Court of Nebraska.

Jan. 4, 1889.

Syllabus by the Court.

1. Where the contractor for the erection of a building gave a bond with sureties to “faithfully perform all the covenants and agreements contained in the building contract,” etc., and the building contract provided that he was “to furnish all the material, such as lumber, hardware, brick, lime, sand, paints, oils, etc., as per specifications,” held, that a failure to pay for such materials, whereby a mechanic's lien was filed on the building and lot, was a breach of the condition of the bond, and rendered the builder and his sureties liable thereon.

2. Where a district court remanded a cause tried in the county court, and taken on error to the district court, to the county court, to certify in the judgment that a certain party was surety, held that, while the district court had authority to modify the judgment in that regard, the surety in whose favor the judgment was modified could not complain of the procedure.

Error to district court, Douglas county; GROFF, Judge.Estabrook & Irvine, for plaintiff in error.

N. J. Burnham, for defendant in error.

MAXWELL, J.

This action was brought in the county court of Douglas county by the defendant in error against Joseph Kough as principal, and the plaintiff in error and others as sureties, on a bond given by the defendants below to the plaintiff below, conditioned for the performance of a building contract by the defendant below, Kough. Judgment was rendered in the county court against the defendants generally for $329.29 and costs. The plaintiff in error instituted proceedings in error in the district court. Upon the hearing of the petition the court rendered judgment affirming the judgment below, except as to the error assigned in paragraph 1 of said petition, to-wit: “That the said judgment does not certify which of the defendants is principal debtor and which are sureties. As to said alleged error, it is ordered that the county court correct said judgment so as to certify therein that the said Andrew Kiewit is surety.” To procure a reversal of this judgment, this proceeding was instituted. None of the testimony introduced on the trial is preserved in the record; hence the case is submitted on the pleadings. The plaintiff below (defendant in error) alleges in his petition “that on the 18th day of August, 1885, said defendant entered into a bond to him, said plaintiff, in the sum of $500, (a copy of which is hereto attached and made a part of this petition,) that said J. S. Kough would faithfully perform all the covenants and agreements contained in one certain building contract made by and between said plaintiff, Carter, and defendant, Kough, and made a part of this petition. Plaintiff states that said defendant, Kough, did not faithfully perform all the covenants and agreements contained in said building contract, to plaintiff's damage, in the sum of $500, in the following particulars: Outhouse, short one ventilator, value $1.50; one window, $2.00; cistern, short in capacity 25 bbls., $7.00; short 25 feet overflow pipe, 6 inches, $7.50; one iron cover, $3.50; filter filling, $2.50; ornaments, $18.00; 6 iron air-grates, 3 inches by three inches, $2.40; 8 brass window locks, $2.40; 4 brass door bolts, $1.60; eaves unpainted inside, $5.50; two transoms, short, $6.00; steel screw instead of brass ones, $1.50; Japan escutcheons, $2.50; walks, 6 inches short in width, length thereof being 170 feet, $2.25; failure to remove top-soil on lot, $28.75; defective plastering, $15.00; main building, short two feet, $20.40. Plaintiff also paid for the use and benefit of defendant on mechanic's lien upon said property, in excess of balance on original contract price, the sum of $270; the said liens being for material purchased by defendant, Kough, for the erection of said building, and for which he was liable, but neglected and refused to pay, thus subjecting plaintiff's property, a frame cottage, in lot No. 5, block 3, in subdivision of J. I. Reddick's addition, to the payment of said liens, in all to the sum of $670, although he was requested by the plaintiff to pay the same. Pl...