Wis. Face & Fire Brick Co. v. Bonnett Const. Co.
| Citation | 188 Wis. 383,206 N.W. 204 |
| Parties | WISCONSIN FACE & FIRE BRICK CO. v. BONNETT CONST. CO. ET AL. |
| Decision Date | 08 December 1925 |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.
Action by the Wisconsin Face & Fire Brick Company against the Bonnett Construction Company and the Southern Surety Company. Judgment for plaintiff, and defendant Surety Company appeals. Affirmed.
Suretyship. Bonnett Construction Company entered into a contract with the Layton Park Evangelical Lutheran Congregation, whereby the Bonnett Construction Company was to furnish all the materials and perform all the work prescribed in the specifications entitled “concrete and mason work.” The defendant surety company executed a bond on behalf of the Bonnett Construction Company, the condition of which was as follows:
“The condition of the above obligation is such that if the above bounden principal shall well and truly keep, do and perform each and every, all and singular, the matters and things in said contract set forth and specified to be by said principal kept, done and performed at the time and in the manner in said contract specified, and shall pay over, make good and reimburse to the above named obligee all loss and damage which said obligee may sustain by reason of failure of default on the part of said principal, and shall pay to each and every person or party entitled thereto, all claims for work or labor performed and materials furnished for or in or about or under such contract, then this obligation shall be void, otherwise to be and remain in full force and effect.”
The plaintiff entered upon the performance of its contract with the construction company, delivered brick to be used and which were in fact used in the construction of the building. The construction company failed to pay for the brick so delivered and used, and in its first cause of action the plaintiff seeks to recover the remainder due it on account of the sale and delivery of such brick. For the second cause of action, plaintiff alleges a like situation; that the contract of the construction company was to provide all the materials and perform all the work for the doing of the concrete, cement and mason work in the erection of a schoolhouse for school district No. 4 in the village of Shorewood. In its complaint, the plaintiff alleges with reference to each cause of action that it knew of the execution and delivery of the bond and sold and delivered the materials furnished to the construction company in reliance upon it. By its answer the surety company admitted the making of the contracts, the execution and delivery of the bond, the delivery of the materials, alleged that the contract under which the Bonnett Construction Company did its work required the owner to make payments on account as provided in the general conditions of the contract in sums proportionate to the estimated value of the work done and materials wrought into the building, 15 per cent. to be retained out of each payment until final completion of the contract, final payment to be made 60 days after the completion of the work; alleged that payments were made in disregard of this clause of the contract; that the defendant had in no manner waived the provisions of article 4 relating to payments.
The defendant alleges as a second and separate defense that the plaintiff during the time the contract was being performed acquired certain knowledge and information in relation to the solvency and financial standing of the Bonnett Construction Company, learned that it was unable to pay its bills; that the surety company had no knowledge of such financial standing and was misled in respect thereto by the misrepresentations of the Bonnett Construction Company; that the plaintiff claimed the benefit of the bond as a contract made for its benefit; that it was the duty of the plaintiff to apprise the surety company of the knowledge and information it had with respect to the solvency and financial standing of the construction company; that instead of communicating such knowledge, it continued to furnish such building materials “without notifying this answering defendant so that it could protect itself from loss and damages, which said plaintiff well knew would result to this answering defendant”; that by reason of the failure of the plaintiff to notify the surety company of the facts within its knowledge, the surety company was discharged of liability to the plaintiff on the bond; and it further claimed that plaintiff had ample security for its claim by reason of its right to a mechanic's lien upon the property upon which the building was constructed. This separate defense was set out in paragraphs 10 to 17, inclusive. The second cause of action was for the material furnished in building the schoolhouse and contains substantially the same allegations.
The plaintiff moved to strike out certain parts of the answer for the...
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