Simonson v. Grant

• Decision Date: 21 February 1887
• Citation: 36 Minn. 439
• Parties: P. SIMONSON and others <I>vs.</I> L. A. GRANT, impleaded, etc.
• Court: Minnesota Supreme Court

Page 439

36 Minn. 439

P. SIMONSON and othersvs.

L. A. GRANT, impleaded, etc.

Supreme Court of Minnesota.

February 21, 1887.

Action in the district court for Hennepin county against the defendants Thori & Malmberg, to recover the value of materials sold and delivered to them for use, and used, in building a house for defendant Grant, and against defendant Grant to enforce a lien against the building, etc. Defence by Grant that the plaintiffs were sureties on a bond given to him by Thori & Malmberg, conditioned for the faithful performance of the building contract, one of the provisions of which was that Thori & Malmberg should "protect said Grant and save him harmless from all claims and liens for labor and material

contracted by them on said building." Reply, that Grant and the contractors had departed from the terms of the contract, and so discharged the plaintiffs from liability as sureties on the bond.

The action was tried by Rea, J., who found the facts stated in the opinion, and ordered judgment for defendant Grant, from which judgment the plaintiffs appeal.

Ueland, Shores & Holt, for appellants.

Benton & Roberts, for respondent.

VANDERBURGH, J.

Plaintiffs were sureties for the faithful performance by the defendants Thori & Malmberg of their building contract with the defendant Grant. They also furnished materials used in the building erected in pursuance of the contract, and claim a lien therefor in this action. Defendant Grant's defence against the enforcement of the lien is rested on the claim that the engagement of the plaintiffs as sureties estops them from claiming any lien for materials furnished under the same contract. To this the plaintiffs reply that they had been released from the obligation of their bond before any materials were furnished by them.

The building contract in question contained a provision that Thori & Malmberg "would protect said Grant, and save him harmless from all claims and liens for labor and materials contracted by them on said building." The contract price for the building, including labor and materials, was $6,300, to be paid in instalments as the work progressed. The contract is set out in full in the record, and is dated October 25, 1884. The first instalment of $500 was paid to the contractors Thori & Malmberg as therein provided. The contract provided that this instalment was to be paid "when all the lumber is on the ground, except siding and flooring, and the first floor laid; and, second, when the building is inclosed, sheathed, shingled, and back-plastered, the chimneys built, and roof painted, $800." It also provided that so much of each payment as shall be necessary to pay for materials and labor furnished shall be used for that purpose, and after the first payment, and before the others are made, said Thori & Malmberg shall furnish said Grant with a written statement from parties furnishing materials or labor, or other satisfactory evidence, that the money paid has been so used. After the payment of the first instalment according to the terms of the contract, defendant Grant, having discovered that the greater part thereof had not been applied as required by the terms of the contract, thereupon refused to make any further payments directly to them, but thereafter, from time to time, made payments upon their order to divers parties who had valid claims against them, and which, if not seasonably paid, might be enforced against the building by filing liens therefor in pursuance of the statute. The court also finds "that the contractors did not perform the work called for by said contract in the order provided for, and that such payments made by defendant Grant...