Sample v. Hale

• Decision Date: 16 March 1892
• Citation: 34 Neb. 220,51 N.W. 837
• Parties: SAMPLE ET AL. v. HALE ET AL.
• Court: Nebraska Supreme Court

34 Neb. 220

51 N.W. 837

SAMPLE ET AL.

v.HALE ET AL.

Supreme Court of Nebraska.

March 16, 1892.

Syllabus by the Court.

The state, when constructing a public building, is chargeable with a moral duty to protect the persons who furnish labor and material for the erection of the building as far as possible. Therefore a provision in a contract for the erection of such building, by which the contractor “agrees to pay off and settle in full with the parties entitled thereto all accounts and claims that may become due by reason of laborers' and mechanics' wages, or for materials furnished or services rendered, so that each and all persons may receive his or their just dues in that behalf,” is not in excess of the powers of the board of public lands and buildings; and the sureties on the contractor's bond for the faithful performance of the contract will be liable for debts arising under the above provision.

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

Action by Sample & Son against John Layne, A. J. Hale, and Charles A. Sweet, to recover on a certain bond. From a judgment for defendants, plaintiffs bring error. Reversed.Leese, Stewart & Rose, for plaintiffs in error.

J. L. Caldwell, for defendants in error.

MAXWELL, C. J.

On the 10th of December, 1887, the board of public lands and buildings awarded to John Layne the contract for the erection of the Industrial Home at Milford, for the agreed price of $14,900. The contract is as follows: “This contract, made and entered into this 10th day of December, 1887, by and between John Layne, of Lancaster county, Nebraska, party of the first part, and the state of Nebraska, by the board of public lands and buildings, acting for and in behalf of said state, party of the second part, witnesseth that for and in consideration of the payments to be made as hereinafter set forth by the said party of the second part, the said party of the first part hereby agrees to furnish all materials and labor necessary for the construction, and to erect, build, and entirely complete, one two-story brick building, with stone basement, and steam-heating and plumbing for same, for Industrial Home, at Milford, Nebraska, according to the plans, specifications, and detail drawings prepared by Blake & Co., architects for said building, and adopted by the board of public lands and buildings. Said plans, specifications, and detail drawings are now on file in the office of the commissioners of public lands and buildings, and, together with the proposals of said first party to build said building, and the law authorizing the erection of said building, approved March 31st, 1887, are hereby made a part of this contract. And the said party of the first part further agrees that all the material used in the erection of said building shall be of the best quality, and that all work shall be done in a good workman-like manner, and that the said building, and the steam-heating and plumbing for the same, shall all be done and completed on or before the 1st day of September, 1888. And the first party further agrees to pay off and settle in full with the parties entitled thereto all accounts and claims that may become due by reason of laborers' and mechanics' wages, or for materials furnished or services rendered, so that each and all persons may receive his or their just dues in that behalf. And in consideration of the erection and completion of said building and the fulfillment of the covenant and agreement by first party as above set forth, the said party of the second part hereby agrees to pay to the said first party the sum of $14,390 in the manner and at all the times as follows, to-wit: 80 per cent. of monthly estimates made by the superintendent of construction for said building, when the same shall have been made and certified in writing to the board of public lands and buildings by said superintendents, from month to month, during the erection of said building; and the balance shall be paid when said building is fully completed according to the contract, and so certified by the superintendent of construction for said building, and accepted by the board of public lands and buildings after said first party has executed a release in writing to the state of all claims and demands on account of any and all services rendered and materials furnished on account of said building. And it is hereby further agreed and understood by the parties to this contract that at any time during the erection of said building said second party shall have the right, and is hereby allowed the privilege, of making any change or changes in the plans of said building, or anything pertaining thereto, that said second party may deem proper: provided, however, that any changes that may be so made and are of such a character as to add or detract from the contract price of said building shall be adjusted by three...