294 N.W. 210 | Minn. | 1940
The facts are not in dispute. The sole issue is whether upon the facts now to be recited the surety is liable by reason *369 of its waiver of the mentioned statutory requirement.
The work was completed and accepted on September 18, 1937. Neither plaintiff has filed its claim with the county auditor. On November 17 plaintiff in the first cause wrote the surety and the school district stating that it was "attaching the necessary exhibits setting forth an unpaid balance due" it from the construction company "for materials furnished in connection with the job named in the subject of this letter. We have been unable to accomplish collection of this balance from" the construction company "and are therefore desirous of filing with you this claim against funds due or to become due * * * in connection with their contract with you on this job. Will you kindly acknowledge receipt by return mail, and oblige." The surety promptly answered acknowledging receipt of the letter and enclosures. "We are at this time investigating the matter. You, of course, understand that this letter is written and our investigation is being made under a complete reservation of rights. It is our desire, however, to coöperate with you." On December 2, 1937, the plaintiff in the other action wrote the surety saying: "We are filing claim as per enclosed statement and ask that you kindly acknowledge receipt of same and oblige." A statement of its claim for labor and material furnished was enclosed. On December 8 the surety wrote: "We acknowledge registered letter of December 2nd enclosing statement of claim in connection with * * * jobs at Austin, Minn. The matter is receiving our attention." Then followed the same language in respect to reservation of rights as was contained in the letter to the plaintiff in the first action.
At the trial it was stipulated that both plaintiffs were ignorant of our statute requiring claims such as these to be filed in the office of the county auditor; likewise, that the surety was not aware that plaintiffs, or either of them, had not filed the claims as provided by the statute. *370
The statute (3 Mason Minn. St. 1940 Supp. § 9705) reads:
"No action shall be maintained on any such bond unless withinninety days after the completion of the contract and acceptancethereof * * * claimant shall file a written notice specifying the nature and amount of his claim and the date of furnishing the last item thereof, in the office * * * of the countyauditor of the county * * * in which such municipal corporation, public board or body is situate, * * * The county auditor shall enter the time of filing every such notice in a book kept for that purpose which shall be properly indexed." (Italics supplied.)
Upon these undisputed facts the surety contends that the statutory provision quoted above had not been waived by it in either case; hence that the court's findings and resulting judgment are in both cases so lacking in factual foundation as to be without support to sustain the imposed liability.
1. The purpose of the statute (3 Mason Minn. St. 1940 Supp. § 9700) is to protect laborers and materialmen who perform labor or furnish material for the execution of a public work to which the mechanic's lien statute does not apply. The bond required and given by the act "stands as security for the payment of all obligations incurred by the contractor in the prosecution of the work, and the general rules and principles of the law of suretyship apply to and govern the rights of the parties." Wilcox Lbr. Co. v. School Dist. No. 268,
2. As we have seen (§ 9705): "No action shall be maintained on any such bond unless * * * the claimant shall file" the notice as by that act required. It is a condition precedent which must be performed before the right to bring action on the bond accrues. As we recently said in Shandorf v. Sampson,
Plaintiffs, as the beneficiaries of the bond, must bear the burden of showing statutory compliance on their part before they can avail themselves of the benefits thereof. Grant v. Berrisford,
3. The cases upon which plaintiffs rely, Benson v. Barrett,
4. The court's finding that the surety company "waived" statutory requirements respecting filing of notice we think is not sustainable. There is nothing in either of the letters indicating that any of its rights, statutory or otherwise, were to be limited or surrendered. On the contrary, it is said "our investigation is being made under a complete reservation of rights." The law giving plaintiffs their cause of action required strict observance on their part of the filing of such notice with the proper officer.
Each cause is reversed with directions to enter judgment for appellant. *373