Kniess v. Am. Sur. Co. of N.Y.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtWICKHEM
Citation239 Wis. 261,300 N.W. 913
Decision Date02 December 1941
PartiesKNIESS et ux. v. AMERICAN SURETY CO. OF NEW YORK et al.

239 Wis. 261
300 N.W. 913

KNIESS et ux.
v.
AMERICAN SURETY CO.
OF NEW YORK et al.

Supreme Court of Wisconsin.

Dec. 2, 1941.


Appeal from an Order of the Circuit Court for Marathon County; George J. Leicht, Judge.

Affirmed.

[300 N.W. 914]

Action by Charles W. Kniess and Frieda Kniess, his wife, plaintiffs, v. American Surety Company of New York, a foreign corporation, and New York Casualty Company, a foreign corporation, defendants, to recover the amount of a judgment against the Jefferson Construction Company arising out of blasting damage to plaintiffs' property. The blasting was done in connection with a contract for the laying of a sewer. Defendants had executed a bond to the city of Wausau to secure the performance of this contract. A demurrer to plaintiffs' complaint was sustained, whereupon plaintiffs pleaded over and defendants answered. Plaintiffs demurred to defendants' answer and the court overruled the demurrer. Plaintiffs appeal, both from the order sustaining the demurrer to the first complaint and from the order overruling the demurrer to defendants' answer. The material facts as set forth in the pleadings will be stated in the opinion.

Genrich & Genrich, of Wausau (Herbert L. Terwilliger, James A. Fitzpatrick, and William J. Hoffmann, all of Wausau, of counsel), for appellants.

North, Bie, Duquaine, Welsh & Trowbridge, of Green Bay, for respondents.


WICKHEM, Justice.

No particular significance appears to attach to the fact that this is an appeal from two separate orders. It is assumed by the parties that there are now before the court on the basis of a complaint and answer enough facts upon which to determine the question of law argued upon this appeal; hence the facts will merely be stated without reference to the pleadings.

[1][2] During the years 1939 and 1940 Jefferson Construction Company as principal contractor built an interceptor sewer in the city of Wausau. The contract price was approximately $201,000. The contract required that before work was commenced the contractor obtain compensation insurance, public liability and property damage insurance. Riders or separate policies covering the special hazards arising from the operation of trucks, the undermining of adjacent structures or blasting operations were also required. The contract was specific as to the amount of coverage for public liability and property damage insurance. While blasting rock the contractor negligently damaged plaintiffs' property. Plaintiff sued the contractor and recovered judgment in the sum of $3,577.19. This judgment was affirmed upon appeal to this court. The Wisconsin Mutual Insurance Company assumed defense of the action under its policy but before paying the judgment got into financial difficulties and is in the hands of the State Insurance Commissioner for liquidation. Defendants sustained large losses by reason of contributions to the cost of completing the project and the payment of valid claims for labor and materials. The contract of guaranty upon which defendants are sued was given in compliance with section 289.16(1) which provides in substance that all contracts for the performance of labor or furnishing of materials involving $100 or more and having to do with public work of any kind shall contain a provision for the payment by the contractor of all claims for labor performed and materials furnished including fuel, lumber, building materials, machinery, vehicles, motor oil, premiums for workmen's compensation insurance, etc. It is further provided that no such contract shall be made unless the contractor shall give a bond, the penalty of which shall not be less than the contract price, conditioned for the faithful performance of the contract and payment to each person entitled thereto of all claims for labor performed, materials furnished, etc. There is no doubt upon the record that the bond was furnished to comply with this statutory requirement. The conditions of the bond are that the principal shall well and truly perform and fulfill all the undertakings,

[300 N.W. 915]

covenants, terms and conditions of the proposal and agreement and that the principal shall promptly the principal to all persons supplying the principal with labor and materials in the prosecution of the work. The bond is no broader than the calls of the statute. To engage that the principal will well and truly perform and fulfill all of the undertakings, covenants, terms and conditions of the proposal and agreement is nothing more than an agreement that he will faithfully perform his contract and the detail in which the bond is stated does not in any way enlarge the duties of the principal. The contract executed in this case contains internal evidence that the bond required by it and actually executed was intended simply to be a compliance with section 289.16. Section (1) of the general conditions of the contract which by the...

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7 practice notes
  • State Highway Administration v. Transamerica Ins. Co., No. 76
    • United States
    • Court of Appeals of Maryland
    • December 8, 1976
    ...City of University City v. Frank Miceli & Sons R. & B. Co., 347 S.W.2d 131, 134 (Mo.1961); Kniess v. American Surety Co. of New York, 239 Wis. 261, 300 N.W. 913, 916 13 In its brief, the State does not challenge the correctness of the judgment in the amount of $283,373.97 rendered in favor ......
  • Tri-State Insurance Company v. United States, No. 17651.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 19, 1965
    ...surety liable to such third person for the contractor\'s failure to discharge that duty." See also Kniess v. American Surety Co. of N. Y., 239 Wis. 261, 300 N.W. 913 (1941); United States Fidelity & Guaranty Co. v. Eubanks, 126 Tex. 405, 87 S.W.2d 248 The fact that these decisions involved ......
  • Water Works, Gas & Sewer Bd. of City of Oneonta, Inc. v. P. A. Buchanan Contracting Co.
    • United States
    • Supreme Court of Alabama
    • July 31, 1975
    ...supra; United States for use of Moran Towing Corp. v. Hartford Accident & Indemnity Co., supra; Kniess v. American Surety Co. of New York, 239 Wis. 261, 300 N.W. The trial court correctly held that, as a matter of law, the motion for summary judgment was proper in this case. Affirmed. HEFLI......
  • Healy Plumbing & Heating Co. v. Mpls.-St. Paul Sanitary Dist., MINNEAPOLIS-SAINT
    • United States
    • Supreme Court of Minnesota (US)
    • June 13, 1969
    ...given would be left without any protection at all. This thought is aptly stated by the Wisconsin court in Kniess v. American Surety Co., 239 Wis. 261, 266, 300 N.W. [284 MINN 17] 913, 915, which involved an action on a bond given pursuant to a statute quite similar to ours. There the court ......
  • Request a trial to view additional results
7 cases
  • State Highway Administration v. Transamerica Ins. Co., No. 76
    • United States
    • Court of Appeals of Maryland
    • December 8, 1976
    ...City of University City v. Frank Miceli & Sons R. & B. Co., 347 S.W.2d 131, 134 (Mo.1961); Kniess v. American Surety Co. of New York, 239 Wis. 261, 300 N.W. 913, 916 13 In its brief, the State does not challenge the correctness of the judgment in the amount of $283,373.97 rendered in favor ......
  • Tri-State Insurance Company v. United States, No. 17651.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 19, 1965
    ...surety liable to such third person for the contractor\'s failure to discharge that duty." See also Kniess v. American Surety Co. of N. Y., 239 Wis. 261, 300 N.W. 913 (1941); United States Fidelity & Guaranty Co. v. Eubanks, 126 Tex. 405, 87 S.W.2d 248 The fact that these decisions involved ......
  • Water Works, Gas & Sewer Bd. of City of Oneonta, Inc. v. P. A. Buchanan Contracting Co.
    • United States
    • Supreme Court of Alabama
    • July 31, 1975
    ...supra; United States for use of Moran Towing Corp. v. Hartford Accident & Indemnity Co., supra; Kniess v. American Surety Co. of New York, 239 Wis. 261, 300 N.W. The trial court correctly held that, as a matter of law, the motion for summary judgment was proper in this case. Affirmed. HEFLI......
  • Healy Plumbing & Heating Co. v. Mpls.-St. Paul Sanitary Dist., MINNEAPOLIS-SAINT
    • United States
    • Supreme Court of Minnesota (US)
    • June 13, 1969
    ...given would be left without any protection at all. This thought is aptly stated by the Wisconsin court in Kniess v. American Surety Co., 239 Wis. 261, 266, 300 N.W. [284 MINN 17] 913, 915, which involved an action on a bond given pursuant to a statute quite similar to ours. There the court ......
  • Request a trial to view additional results

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