Korsmeyer Plumbing & Heating Co. v. McClay

• Decision Date: 05 February 1895
• Citation: 43 Neb. 649,62 N.W. 50
• Parties: KORSMEYER PLUMBING & HEATING CO. v. MCCLAY ET AL.
• Court: Nebraska Supreme Court

43 Neb. 649

62 N.W. 50

KORSMEYER PLUMBING & HEATING CO.

v.MCCLAY ET AL.

Supreme Court of Nebraska.

Feb. 5, 1895.

Syllabus by the Court.

It was stipulated in a contract for the erection of a county courthouse that the contractor should receive 85 per cent. of the money earned thereunder, payable on monthly estimates; also “that in each case of payment a certificate shall be obtained by the contractor from the clerk of the county that he has carefully examined the records, and finds no liens or claims against said work or on account of said contractor. Neither shall there be any lawful claims against the contractor in any manner, from any source whatever, for work or material furnished on said work.” Held a promise by the contractor to satisfy the lawful claims of laborers and material men, and that the sureties on his bond for the faithful performance of the contract are liable for a breach of such condition. Lyman v. City of Lincoln, 57 N. W. 531, 38 Neb. 749.

Error to district court, Lancaster county; Strode, Judge.

Action by the Korsmeyer Plumbing & Heating Company against J. H. McClay and others. A demurrer to the petition was sustained, and plaintiff brings error. Reversed.Leese & Starling, for plaintiff in error.

Atkinson & Doty, C. O. Whedon, and Pound & Burr, for defendants in error.

POST, J.

This was an action by the plaintiff in error in the district court of Lancaster county against W. H. B. Stout as principal and J. H. McClay, Louis Meyer, and J. H. Harley as sureties on a bond of the former to said county. Said bond is conditioned for the faithful performance by the principal of the provisions of a contract for the erection of a courthouse for the obligee thereof. A demurrer of the sureties to the petition was sustained by the district court, and, the plaintiff refusing to plead further, the action was dismissed as to them, whereupon it was removed into this court for review upon allegations of error. The subject of the controversy is certain building material furnished by the plaintiff's assignors, F. A. Korsmeyer & Co., for use in the construction of said courthouse. The only question necessary to consider is whetherthere exists between the sureties in this case and the plaintiff's assignors such privity as would entitle the latter to recover against them on the bond. It was stipulated in the contract that Stout should receive 85 per cent. of the amount earned thereunder, payable on monthly estimates of the...