Manny v. National Surety Co.

• Decision Date: 05 January 1904
• Citation: 78 S.W. 69,103 Mo. App. 716
• Parties: MANNY v. NATIONAL SURETY CO. OF NEW YORK.
• Court: Missouri Court of Appeals

78 S.W. 69

103 Mo. App. 716

MANNY v. NATIONAL SURETY CO. OF NEW YORK.

Court of Appeals at St. Louis, Missouri.

January 5, 1904.

CORPORATIONS — SUCCESSION — MECHANIC'S LIEN — CONTRACTOR'S BOND — LIABILITY OF SURETY—DEFENSES—JUDGMENT — INTEREST.

1. Where one surety company absorbed the assets of another, and assumed all its liabilities, and was in all respects its corporate successor, such succeeding company was liable on a bond executed by its predecessor.

2. A bond executed by a contractor and builder, with surety, to save the owner harmless against all claims, mechanics' liens, etc., was a joint and several bond, under Rev. St. 1899, § 889, declaring that all contracts which by common law are joint only shall be construed to be joint and several. Therefore the owner might proceed against the surety without first exhausting his remedy against the contractor.

3. Where proceedings to enforce a mechanic's lien were defended by the surety on the contractor's bond, and it did not make the defense that the lien was not filed in time, on judgment being rendered against the owner, and paid by him, the surety or its successor was liable in an action on the bond, and could not make such defense thereto.

4. After the work on a house under a contract with the builder, the owner sold the house, and the purchaser required some extra work, for which new contracts were made, after which the contractor filed a lien including work under both the old and new contracts, and recovery was had for full amount in proceedings thereon. Held, that the liability of defendant as surety on the contractor's bond did not extend to that portion of the lien which included work under the new contract.

5. Where the owner of a building is compelled, in proceedings against him, to pay a mechanic's lien for which the surety on the contractor's bond is liable, on recovering against the surety the owner is entitled to recover costs incurred in the proceedings against him, the amount of the lien paid, with interest thereon to the date of judgment therefor, and interest on such judgment plus the amount of costs from date of rendition.

Appeal from St. Louis Circuit Court; J. A. McDonald, Judge.

Action by Edmund A. Manny against the National Surety Company of New York. From a judgment for defendant, plaintiff appeals. Judgment for plaintiff.

Johnson & Richards and C. C. Allen, for appellant. T. J. Rowe, for appellee.

GOODE, J.

Action on a contractor's bond, originally brought against the firm of Lyons Bros., the contractors, the National Surety Company of Missouri, and the National Surety Company of New York. We gather from the record that the case was dismissed as to the firm of Lyons Bros. That firm contracted with the plaintiff, Manny, to build him a house, and gave bond for the faithful performance of the contract, with the National Surety Company of Missouri as surety thereon. The bond bound the Lyons Bros. to well and truly perform and fulfill the stipulations and covenants of the contract; keep Manny harmless and indemnified against all claims, demands, judgments, liens, mechanics' liens, costs, and fees of every description incurred in suits or otherwise that might be had against him, or against the improvements to be constructed under said contract; and repay to said obligee all sums of money which he may be obliged to pay on account of labor done or materials furnished for said improvement, etc. After the completion of the house, the O'Connell Painting Company filed a lien against the premises, and brought suit to enforce it. The National Surety Company of Missouri, as surety on the bond, was notified to defend the case, and did so. It resulted in a judgment enforcing the lien against the premises for the sum of $536.45, and $28.80 costs, which sums were afterwards paid by the plaintiff. No appeal was taken from this judgment by Manny, in view of advice from the attorneys of the surety company that they did not see any ground on which an appeal could be successfully prosecuted. They demanded that Manny pay the judgment, and then sue Lyons Bros. and the National Surety Company of Missouri on the...