Union Sewer-Pipe Co. v. Olson

• Decision Date: 04 January 1901
• Citation: 84 N.W. 756,82 Minn. 187
• Parties: UNION SEWER-PIPE CO. v. OLSON et al.
• Court: Minnesota Supreme Court

82 Minn. 187

84 N.W. 756

UNION SEWER-PIPE CO.

v.OLSON et al.

Supreme Court of Minnesota.

Jan. 4, 1901.

Appeal from district court, Polk county; William Watts, Judge.

Action by the Union Sewer-Pipe Company against Andrew Olson and others. Demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.

Syllabus by the Court

1. The rules for the construction of contracts and other written instruments apply to official bonds, the application thereof being guided by the further rule that sureties are not liable beyond the strict letter of their contract.

2. Bond on which this action is founded construed, and held (1) that it is not void for uncertainty, and (2) that the conditions thereof are not of the tenor or effect set out in the complaint.

3. As a general rule, exhibits attached to a pleading are not to be taken as substantive allegations of fact, unless the pleading be so framed as to show an intention on the part of the pleader to make them such.

4. When, in any case, an exhibit so attached is the foundation of the cause of action or defense to which it relates, the validity or sufficiency thereof, as a matter of law, to constitute or establish such cause of action or defense, may be determined on demurrer to the pleading to which it is so attached. A. A. Miller, for appellant.

H. Steenerson and Chas. Loring, for respondents.

BROWN, J.

Action to recover upon a bond executed by defendants to secure the faithful performance of a contract with the city of Crookston. The bond was executed under the provisions of chapter 307, Gen. Laws 1897. The plaintiff furnished material to be used in the performance of the contract, and the contractor, principal in the bond, has refused and neglected to pay therefor. The complaint alleges, among other things, ‘that in connection with the making of said contract hereinbefore mentioned, and for the purpose of enabling the said defendant Andrew Olson to obtain said contract from said city, he furnished and filed with the comptroller of said city a bond signed by himself as principal, and the defendants A. M. Sivertson and J. Jorgenson as sureties, which said bond bears date the 12th day of September, 1898, and is executed to the city of Crookston by the aforesaid Andrew Olson as principal, and the defendants A. M. Sivertson and J. Jorgenson as sureties, in the penal sum of forty-two hundred ($4,200) dollars, conditioned, among other things, that if the defendant Andrew Olson should well and truly and faithfully execute the work embraced in the hereinbefore mentioned contract with the said city, in the manner and within the period named in said contract, and according to the plans and specifications in the office of said city engineer, and shall pay for all labor and material employed or used, then said bond should be void, but that otherwise it should remain in full force and effect; that a copy of said bond is hereto annexed, marked ‘Exhibit A,’ and made a part of this complaint.' The conditions of the bond, as appears from the copy attached to the complaint, are as follows: ‘The condition of this obligation is such that if the above-bounden Andrew Olson contracts for himself, his heirs and assigns, that he shall well, truly, and faithfully execute the work embraced in the foregoing contract in the manner and within the period named in the said contract, and according to the plans and specifications on file in the office of the city engineer, and in accordance with the instructions given from time to time by said engineer, and pay for all labor and material employed or used, then this obligation to be void; otherwise, to remain in full force and effect.’ Defendants Sivertson and Jorgenson interposed a general demurrer to the complaint, which was sustained by the court below, and plaintiff appeals.

The question raised by the demurrer goes to the validity of the bond, and whether the conditions thereof express a contract, agreement, or obligation, such as is pleaded in the complaint. The statute referred to provides that the person contracted with by any municipality for public improvements shall execute a bond to the municipality, conditioned for the faithful performance of the contract, and the payment for all labor and material employed and used in connection therewith. The complaint alleges that the bond in question was executed in compliance with this statute, and there is little doubt but that the parties thereby attempted such...