King v. Murphy

• Decision Date: 18 November 1896
• Citation: 49 Neb. 670,68 N.W. 1029
• Parties: KING ET AL. v. MURPHY ET AL.
• Court: Nebraska Supreme Court

49 Neb. 670

68 N.W. 1029

KING ET AL.

v.MURPHY ET AL.

Supreme Court of Nebraska.

Nov. 18, 1896.

Syllabus by the Court.

1. The admission of incompetent testimony is not sufficient ground for reversal in a case tried to the court without a jury.

2. The bond of a building contractor to pay all labor performed and materials furnished under a contract with a county renders the sureties liable to a subcontractor for materials furnished.

3. A surety on a contractor's bond is not relieved from liability for the payment of claims for material men because the contractor was paid at an earlier date than fixed by the contract.

4. A judgment rendered upon conflicting evidence will not be disturbed by the supreme court.

Error to district court, Gage county; Bush. Judge.

Action by B. S. King & Co. and B. C. Beed against M. T. Murphy and others. From the judgment, plaintiffs bring error. Modified.Hugh J. Dobbs, for plaintiffs in error.

L. M. Pemberton, F. M. Davis, and B. G. Burbank, for defendants in error.

NORVAL, J.

M. T. Murphy, on the 29th day of March, 1890, entered into a written contract with Gage county for the construction of a courthouse according to the plans and specifications furnished by Gum & Curtis, architects. By the terms of the contract, Murphy was to furnish all the materials and perform all the labor for the erection of the building. For the faithful performance of the contract, he gave a bond to the county in the sum of $20,000, signed by himself as principal; and the names of Gottlieb Storz, Henry P. Drexel, and Albert Foll were attached thereto as sureties. The bond, among other things, contained a stipulation that Murphy should pay for all labor and materials furnished in the construction of the courthouse. The contractor, Murphy, having failed to pay Barritt S. King & Co. and Bishop C. Beed for certain materials purchased from them and used in the erection of said building, they brought an action against the principal and sureties upon said bond. The defendants Murphy, Storz, and Foll did not answer. Drexel, for answer, denied all the allegations contained in the petition, and alleged he did not sign, execute, or deliver said bond, and that his name attached thereto was a forgery. Ellis, who was also one of the sureties upon the bond, set up in his answer an alteration or change in said contract between Murphy and the county, whereby he claims to be released as surety on the bond. Plaintiff replied by a general denial. Upon the issues joined a trial was had to the court, which resulted in a judgment in favor of the plaintiffs for the amount claimed in the petition against the nonanswering defendants, and the cause of action was dismissed as to Drexel and Ellis. For the purpose of reversing the judgment of dismissal, plaintiff prosecutes error to this court.

By the terms of the contract, payments were to be made by the county to the contractor upon monthly estimates furnished by the architects, less 15 per cent. of the amount of such estimates, which was to be retained, and not to become due and payable, until the expiration of 60 days from the completion and acceptance of the building by the county and the architects, and then to be due and payable only in the event that there should be no lien and incumbrances upon the property for labor performed or materials furnished by or through the contractor. The defendant Ellis upon the trial introduced in evidence, over the objection of the plaintiffs, the record of the county board of Gage county, for the purpose of showing the waiver by the county of the right to retain the reserve 15 per cent. of the contract price. At the close of the testimony, plaintiffs asked that said testimony be stricken out, which motion was overruled by the court. These rulings are complained of here. Even though the testimony mentioned above was improperly received, its admission was not reversible error, since the cause was tried to the court without a jury. Viergutz v. Aultman, Miller & Co., 46 Neb. 141, 64 N. W. 693;Pollock v. Whipple, 45...