Steffes v. Lemke

• Decision Date: 14 January 1889
• Citation: 41 N.W. 302,40 Minn. 27
• Parties: Pascal Steffes v. Frank Lemke, impleaded, etc. John Schwickert v. Same
• Court: Minnesota Supreme Court

41 N.W. 302

40 Minn. 27

Pascal Steffes v. Frank Lemke, impleaded, etc. John Schwickert v. Same

Supreme Court of Minnesota

January 14, 1889

Defendant Lemke appeals from the judgment in each of the above actions, which were tried together, without a jury, in the municipal court of St. Paul. One Bruecker, having made a contract with Gardner S. Moore to erect a building, made and filed a bond, executed by himself as principal, and by the defendants Lemke and Sauerwein as sureties, conditioned as required by Gen. St. 1878, c. 90, § 3. The plaintiffs brought these actions on the bond, against Bruecker and his sureties, to recover for labor performed for Bruecker in erecting the building. The summons was not served upon Bruecker, and the other defendants objected to any proceedings until service should be made upon him. The court overruled the objection. The defendant Lemke, among other defences, alleged that Moore, at the request of Bruecker, and without the consent of the sureties, extended the time for the performance of the building contract. The court sustained plaintiffs' demurrers to this defence. It appeared upon the face of the complaint that Moore was the owner of only an undivided interest in the land upon which the building was erected. In each case a demurrer to the complaint by defendant Lemke was overruled by the court, and judgment was rendered against the two sureties for the labor performed by the plaintiff.

Judgments affirmed.

Willis Nelson & Speel, for appellant.

B. H Schriber, for respondents.

OPINION

Gilfillan, C. J.

These actions were brought against Bruecker, the contractor, as principal, and the other defendants as sureties, in a bond executed by them to Gardner S. Moore, as owner, conditioned that Bruecker would pay all just claims for work done and to be done, and all material furnished and to be furnished, pursuant to a contract between Moore, as owner, and Bruecker as contractor, for the construction of a certain building, and in the execution of the work therein provided for as they should become due, which bond was made and filed under Gen. St. 1878, c. 90, § 3, in order to prevent a lien attaching to such building for the work so done and material so furnished. The bond is joint and several. The plaintiffs are mechanics who worked for Bruecker in doing the work required by his contract. The plaintiffs had judgment below, and the cases come here on bills of exceptions. There are 20 assignments of error, some too trivial to require specific mention. All that need be particularly referred to may be grouped under a few heads.

First. As to who need be made parties defendant. The language of the statute is too explicit to admit of a question: "Persons severally liable upon...