Robinson v. Hagenkamp

• Decision Date: 27 December 1892
• Citation: 53 N.W. 813,52 Minn. 101
• Parties: ROBINSON v HAGENKAMP ET AL.
• Court: Minnesota Supreme Court

52 Minn. 101

53 N.W. 813

ROBINSONvHAGENKAMP ET AL.

Supreme Court of Minnesota.

Dec. 27, 1892.

(Syllabus by the Court.)

H. contracted with the plaintiff to erect for her a block of buildings for the specified price of $23,800, which was to be paid at intervals of two weeks, in proportion to the progress of the work, upon estimates of the supervising architects; 15 per cent. of the estimates being, however, reserved until completion. H., with the defendants as his sureties, executed an indemnity bond to the plaintiff, conditioned that he should perform his contract, and that they would save the plaintiff harmless from mechanics' liens. H. abandoned the contract before the completion of the buildings, whereupon, the plaintiff calling upon the defendants to take action in the premises, they employed M. to complete the buildings, and this was done; M. receiving the unpaid part of the price, including the 15 per cent. thereof which had been reserved while H. was prosecuting the work. While H. was engaged in the construction, some extra work was done, and the specifications were departed from in some particulars, by direction of the plaintiff; but the defendants were not notified of this by the plaintiff. There were also extra work and departures from the specifications while M. was doing the work. Under both H. and M., debts were incurred by them which subjected the property to mechanics' liens, upon which judgment was afterwards rendered against the property. Held:

1. When the defendants employed M. to complete the construction, they assumed the relation of principal obligors as to the work thereafter done; M. being their agent. They were responsible to the plaintiff for liens imposed on the property by reason of the debts incurred by M.

2. By availing themselves of the benefit of the contract, receiving (through M.) the contract price, including the 15 per cent. reserved while H. was engaged in the work, they are precluded from making the defense that they were discharged from obligation by reason of the changes referred to. The plaintiff was under no obligation to voluntarily inform them of such changes.

3. Payments to the defendants' principal of proper amounts, but at intervals somewhat different from that specified in the contract, (two weeks,) deemed immaterial.

4. The pendency of an action by other parties (the lienors) to recover personally against the defendants for materials sold while M. was doing the work is no defense to the action by this plaintiff to recover for the liens imposed on the property.

Appeal from district court, St. Louis county; ENSIGN, Judge.

Action by Sarah M. Robinson against J. J. Hagenkamp and others and Fred Ruf and others to recover for liens paid and for damages named in a contract. Verdict for plaintiff. From an order refusing a new trial, Fred Ruf and others appeal. Affirmed.

Edson & Edson, for appellants.

Walter Ayers, for respondent.

DICKINSON, J.

The plaintiff entered into a contract with one Hagenkamp whereby the latter agreed to supply all necessary material for, and to erect, a block of five buildings for her and upon her land, in accordance with a plan and specifications which constituted a part of the contract. The buildings were to be fully completed by the middle of November, 1890; and if not completed by that date the contractor agreed to pay to the plaintiff, as liquidated damages, the sum of $15 for each day that should elapse before completion. The plaintiff agreed to pay to the contractor the sum of $23,800, payments to be made at intervals of two weeks of such proportion of that sum as the work done and materials furnished should bear to the whole, less 15 per cent. thereof to be withheld by the plaintiff until the contract should be fully performed. The amounts thus to be paid were to be determined by the estimates of Traphagen and Fitzpatrick, the supervising architects. In accordance with a provision of this contract, Hagenkamp, the contractor, as principal, and these appellants (defendants) as his sureties, executed to the plaintiff their bond in the sum of $8,000, the condition of which was that Hagenkamp should faithfully perform the contract on his part, and save the plaintiff harmless from all claims of subcontractors, workmen, and material men for work or material employed in the erection of the buildings. Hagenkamp entered upon the performance of the contract, but about the 1st of November he abandoned it, and absconded; the buildings being then only partially constructed. The plaintiff's agent, one Mendenhall, then notified the appellants that plaintiff held them to responsibility as sureties, and called upon them to take action in the matter. Thereupon, they, on the 7th day of November, employed one Mueller to complete the buildings in accordance with the terms of the contract. He went on with the construction, but did not complete the buildings until about the 20th of April of the following year. In the course of the prosecution of the work by the original contractor, Hagenkamp, some extra work was done by direction of the owner, not provided for in the contract, and there were some departures from the specifications, by direction of the plaintiff. No notice of this was communicated by the plaintiff to the defendants, when they, being notified of Hagenkamp's default, employed Mueller to complete the buildings. There was conflicting evidence as to whether they then knew that such changes had been made. After Mueller undertook the work, and during its progress, there was other extra work done, and changes were made, by direction of the plaintiff. During the progress of the work, both while Hagenkamp was carrying it on and also after it was undertaken by Mueller, lien claims arose for labor done and material furnished to them, respectively, and after the buildings were completed lien claims were filed against the property, amounting in all...