39 Minn. 391 | Minn. | 1888
The bond executed by Hall, as principal, and Maxwell and Horst, as sureties, contains the unambiguous and unequivocal obligation of those who executed it, that if Hall should “pay all just claims for all work done and to be done, and all materials furnished and to be furnished pursuant to said contract, and in the execution of the work therein provided for, as they shall become due,” then it should be void; otherwise of full force and virtue. It is admitted that he failed to pay for certain material used in the contract men
But it is urged that plaintiffs have no right to recover upon the bond, because it was given solely for the use of such persons as might perform labor or furnish material to Hall. The plaintiffs had obligated themselves by the statutory bond to Barber, for whom they were erecting the building, to pay for all labor and materials used in its construction; and had thus indirectly become liable to the men who worked for the subcontractor or furnished materials to him. The persons to whom Hall became indebted were his creditors primarily, but to them the plaintiffs were secondarily liable by virtue of the statute, and their bond executed thereunder. Obliged to pay because of their secondary liability, they stood in the position of a surety or guarantor, and, whether strictly or technically so, are entitled to sub-rogation, the same as a surety or guarantor. Marsh v. Pike, 10 Paige, 595. A surety is a person who, being liable to pay a debt, is entitled, if it be enforced against him, to be indemnified by some other person, who ought himself to have.made payment before the surety was obliged to do so; and it is not material in what form the relation of principal
Order affirmed.