Rohman v. Gaiser

• Decision Date: 19 January 1898
• Docket Number: 7778
• Citation: 73 N.W. 923,53 Neb. 474
• Parties: CHARLES H. ROHMAN v. WILLIAM GAISER
• Court: Nebraska Supreme Court

73 N.W. 923

53 Neb. 474

CHARLES H. ROHMAN v. WILLIAM GAISER

No. 7778

Supreme Court of Nebraska

January 19, 1898

ERROR from the district court of Lancaster county. Tried below before TIBBETS, J. Affirmed.

AFFIRMED.

Daniel F. Osgood, for plaintiff in error.

Benjamin F. Johnson, contra.

OPINION

SULLIVAN, J.

This action was brought to recover a balance alleged to be due the defendant in error for material furnished to John Lanham and used by him in the erection of a chapel and dormitory for the Home for the Friendless at Lincoln. The action was upon a bond to the board of public lands and buildings executed by Lanham as principal, and J. C. McBride and the plaintiff in error as sureties. Said bond was conditioned as follows:

"The condition of this obligation is such that, whereas, the above bounden, John Lanham, has been awarded a contract to build, erect, construct, and complete a chapel and dormitory for the Home for the Friendless located at Lincoln, Lancaster county, Nebraska; and, whereas, the said John Lanham has agreed to furnish all work, labor, and materials necessary for the building, erecting, and completing of said chapel and dormitory, and has agreed to settle and pay in full for all work and labor performed, and has agreed to settle for and pay all material-men, for any and all material actually furnished in the erecting constructing, building, and completing said chapel and dormitory: Now, therefore, if the said John Lanham shall well and truly keep and perform each and every covenant, stipulation, and agreement contained in said contract and according to the plans and specifications on file in the office of the commissioner of public lands and buildings, and shall pay in full for all work done and labor performed, and shall pay all laborers' and mechanics' wages, and shall settle in full and pay for all material actually furnished in the constructing, erecting, and completing said chapel and dormitory of the Home for the Friendless, according to the terms of the contract, then this obligation to be void, otherwise to remain in full force and effect.

"JOHN LANHAM.

"J. C. MCBRIDE.

"CHARLES H. ROHMAN."

There was a trial in the district court which resulted in a verdict and judgment for Gaiser, whereupon Rohman brought the case here for review by petition in error.

The principal contention of the plaintiff in error is that the clause in the bond requiring the contractor to pay for material used was inserted without statutory authority therefor, and hence did not create a valid obligation. This precise question was before this court in the case of Sample v. Hale, 34 Neb. 220, 51 N.W. 837, where it was held that such a provision was valid and that the sureties on the contractor's bond would be liable for all debts arising thereunder. The doctrine of that case was subsequently approved in Korsmeyer Plumbing & Heating Co. v. McClay, 43 Neb. 649, 62 N.W. 50 Kaufmann v. Cooper, 46 Neb. 644, 65 N.W. 796, and in other cases. ^[*] The provision in Lanham's contract with the board for the payment of all material used in the construction of the Home for the Friendless inured to the benefit of Gaiser. It is a proposition firmly established in the jurisprudence of this state that one not a party to a...