ERROR
to the district court for Lancaster county. Tried below
before FIELD, J.
REVERSED AND REMANDED.
Leese
Stewart & Rose, for plaintiffs in error:
The
board of public lands and buildings had power to make the
contract, and require the bond. (Knapp v. Swaney, 23
N.W. [Mich.], 163; Baker v. Bryan, 64 Iowa 561).
Plaintiff could maintain the action in his own name on the
bond and contract. (Shamp v. Meyer, 20 Neb. 223;
Baker v. Bryan, 64 Iowa 561; Emmett v
Brophy, 42 Ohio St. 82.)
J. L
Caldwell, contra:
The
board had no right to insert into the contract the provision
to pay for materials and laborers' wages. (Secrest v.
Barbee, 17 Ohio St. 426; Cutler v. Roberts, 7
Neb. 13; Thomas v. Port Huron, 27 Mich. 320;
Port Huron v. McCall, 46 Id., 565.) Plaintiffs
cannot maintain this action, and the contract was not made
for their benefit. (Albertson v. State, 9 Neb. 435;
Hunter v. Comr's, 10 Ohio St. 515; Crowell
v. Currier, 27 N.J.Eq. 152; Wise v. Fuller, 2
Stewart [N. J. Eq.], 261; Trotter v. Hughes, 12
N.Y. 74; Gowen v. Klous, 101 Mass. 454; People
v. Mead, 24 N.Y. 114; Com'rs v. Perry, 5
O., 64; Price v. Doyle, 34 Minn. 400; 1
Parsons, Contracts, 471; Nichols v. Buckam, 117
Mass. 488; State v. Perry, Wright [O.], 662;
Lang v. Pike, 27 Ohio St. 500; State v.
Medary, 17 O., 565; Hart v. State, 120 Ind. 83;
Mittnacht v. Kellermann, 105 N.Y. 467; Faurote v.
State, 110 Ind. 463.
OPINION
MAXWELL, CH. 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 materials used in the erection of
said building shall be of the best quality, and that all work
shall be done in a good workmanlike 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 the times as
follows, to-wit: eighty 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 to or detract from
the contract price of said building shall be adjusted by
three disinterested builders, one of whom shall be selected
by the first party and one by the second party and the third
by the two so selected. And if the parties so selected shall
find that in consequence of said change or changes additional
cost shall have been made such additional cost so made shall
be added to the contract price. But if they find that the
cost shall have been decreased thereby, then the decrease so
found shall be deducted from the contract price of said
building."
To
secure compliance with the contract the defendants in error,
as sureties for Layne, with him gave a bond to the state as
follows:
"Know
all men by these presents, that John Layne, of
Lancaster county, as principal, and A. J. Hale, Chas. A.
Sweet, as sureties, are held and firmly bound unto the state
of Nebraska in the penal sum of $ 14,390, and for the payment
of which we do hereby bind ourselves, our heirs, executors,
and administrators, jointly, severally, and firmly by these
presents.
"Dated
this 10th day of December, 1887.
"The
condition of the above obligation is such, that whereas the
above bounden John Layne has been awarded by the board of
public lands and buildings of the state of Nebraska the
contract for the erection and construction of a building for
the industrial home at Milford, Nebraska, according to
certain plans, specifications, and detail drawings of same as
now on file in the office of the commissioners of public
lands and buildings at Lincoln, Nebraska:
"Now
if John Layne shall faithfully keep and perform each and
every one of the stipulations and agreements contained in the
contract, and at times and in the manner therein specified,
then this obligation to be void, otherwise to be and remain
in full force and effect in law.
"JOHN
LAYNE.
"A.
J. HALE.
"In
presence of CHAS. A. SWEET.
"F.
E. COOK."
The
plaintiff...
