Simonson v. Thori

• Decision Date: 21 February 1887
• Citation: 31 N.W. 861,36 Minn. 439
• Parties: SIMONSON AND OTHERS, PARTNERS, ETC., v THORI AND ANOTHER, PARTNERS, ETC., AND ANOTHER.
• Court: Minnesota Supreme Court

36 Minn. 439

31 N.W. 861

SIMONSON AND OTHERS, PARTNERS, ETC.,vTHORI AND ANOTHER, PARTNERS, ETC., AND ANOTHER.

Supreme Court of Minnesota.

February 21, 1887.

(Syllabus by the Court.)

A surety is bound in the manner and to the extent provided in the obligation executed by him, and no further.

It is not sufficient that he may sustain no injury by a change in the contract; he may stand upon its terms; and, if a variation is made without his consent, it is fatal.

The plaintiffs furnished building material to T. & M., used in a house erected by them for G. under a contract with him, and were sureties for the faithful performance of the contract by T. & M. After the work was commenced, and the first installment paid, and before such building materials were furnished by plaintiffs, G. so far departed from the terms of the contract that payments were made by him to divers persons on the order of the contractors, without reference to the state of the work or the terms of the contract, and in some instances to an amount exceeding the installments due, as stipulated therein, and in anticipation thereof. Held, that the plaintiffs were thereby discharged from their obligation as sureties, and are entitled to enforce their claims for a lien upon such building.

The contract contained a provision that the contractors would protect and save G. harmless from liens for labor and materials. Held, that the mere existence of unpaid claims, for which no lien had been perfected by the proper proceedings, constituted no breach of the contract.

Appeal from district court, Hennepin county.

Action to foreclose material-men's lien.

Ueland, Shores & Holt, for Simonson and others, Partners, etc., appellants.

Benton & Roberts, for Thori and another, Partners, etc., and another, respondents.

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 defense against the enforcement of the lien is rested on the claim that the engagements 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 installments as the work progressed. The contract is set out in full in the record, and is dated October 25, 1884. The first installment of $500 was paid to the contractors Thori & Malmberg as therein provided. The contract provided that this installment 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 installment 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...