The contract provided certain terms and times of payment to the contractor, and also contained the following stipulation:
Thereafter, this action was brought on the bond. As a cause of action, after reciting the contract and bond, the plaintiff alleges that Errington, in prosecuting such work, contracted debts or claims which were or might be made
liens upon the property, as follows:
Hawkeye Lumber Company ............$1,452.88
Louis Hanssen’s Sons Company......... 467.00
H. T. Barber Lumber Company ........ 64.69
Des Moines Marble Company............ 320.00
T. W. McClelland Company ............ 2,333.50
Total $4,638.07
For this sum, less the amount unpaid on the contract, he demands judgment. He also makes a claim for $1,000 damages on account of imperfect work in construction.
The defendant Errington makes no defense. The Casualty Company answered, and, after generally denying what is not admitted, first, admits the contract and bond; second, alleges that plaintiff made payments to Errington in excess of the architect’s estimates; third, alleges that plaintiff failed to have the work done undey supervision of the architect; fourth, alleges failure of the plaintiff to have the matter of his damages audited by the architect; fifth, alleges that plaintiff made several changes in the plan of the building, without the written approval of the architect.
The issues were tried to a jury, which, after finding the amount of claims due the plaintiff, and crediting thereon the unpaid remainder of the contract price and tlm value of the extras furnished by Errington, returned a verdict against defendant for $2,797.99. From the judgment ren
Keeping in mind the defenses pleaded by the appellant, and above particularly stated, the case presents no serious difficulties. None of the special or affirmative defenses pleaded have any substantial support in the testimony, and may be passed without further special comment.
We have, therefore, only to consider the plaintiff’s claim, in connection with the defendant’s admissions and denials and the testimony bearing thereon. ' The evidence tends to show that, when Errington abandoned the work, he left unpaid claims held by dealers who had sold him materials for the building, and that such dealers had already filed, or did immediately thereafter file, liens therefor, as indicated in the list hereinbefore set out. Of these claims plaintiff paid without suit all except the one filed by T. W. McClelland Company for $2,338.50. This claim, it was shown, had been sued, and the lien foreclosed against the plaintiff; but Errington was not a party to the action. There was no showing that this claim has yet been paid.
The first and most serious contention on the part of the defense is that the bond is one of indemnity only, and not of suretyship, and that the only liability of the defendant is to pay the plaintiff such damages as he has, in fact, suffered. From this standpoint, it is argued that, until plaintiff has paid the McClelland claim, he has not been-damaged, and no recovery can be predicated thereon. It is further objected that, as Errington was not a party to the foreclosure of the McClelland lien, the adjudication does not bind the surety.
If the contract in this case were strictly one of indemnity, like an insurance contract or an ordinary fidelity bond, there would be room for -fair argument in support of this defense; but that the bond is strictly and clearly one of suretyship, and that the liability of the Casualty Company is1
The parties to the bond had the right to stipulate what their relations to each other should be, and their agreement that the obligation of the bonding company should be that of suretyship is one which the courts are bound to respect. Grinman v. Walker, 9 Iowa 426, 428; Morrison v.
Among.the things to which the contract and bond bound Errington and his surety, as will be seen by the extract quoted from the agreement, is that the builder will not permit the property to become incumbered by liens, and that the owner, as a matter of self-protection, was authorized at any time “there should be evidence” of any lien or claim for which, if established, he “might become liable,” to rightfully retain the money with which to discharge the claim; or he could proceed to pay off such lien or claim at the builder’s expense; and that, when all payments were made, the builder should refund to the plaintiff all sums the latter might be compelled to pay by reason of the builder’s default. Under this agreement, it was primarily the duty of Errington to see that no liens or claims should accrue to incumber or becloud the title to the plaintiff’s property. If subcontractors or dealers asserted or filed such liens or claims, plaintiff was not bound to resist and litigate them to final adjudication; for the builder had undertaken to protect him against such annoyance and expense, and upon failure so to do, no good reason appears why the plaintiff, acting in good faith, should not recognize such claims and pay them off, relying upon the builder to reimburse him, as agreed in the contract. These lien claimants were admittedly persons who had been furnishing materials to Errington; the claims had been
Coming back now to the McClelland lien and its foreclosure, it is said that, because Errington was not a party to that suit, the adjudication therein was ineffectual, and plaintiff submitted to that decree ’against him at his own peril. In support of this proposition, reliance is had upon Vreeland v. Ellsworth, 71 Iowa 347. It may be conceded that the cited case was properly decided, but it does not follow that it establishes a rule of invariable application. It has often been held that the jurisdiction of the court to adjudicate the claim of the subcontractor against the property owner is not necessarily dependent upon the bringing of the contractor into court. The following cases all bear more or less directly upon this point: Martens v. O’Neil, 131 App. Div. 123 (115 N. Y. Supp. 260); Burgi v. Rudgers, 20 S. D. 646 (108 N. W. 253); Maxon v. School Dist., 5 Wash. 142; Green v. Clifford, 94 Cal. 49 (29 Pac. 331); McDonald v. Backus, 45 Cal. 262; Wood v. Oakland 4 B. R. T. Co., 107 Cal. 500 (40 Pac. 806); Cooper Mfg. Co. v. Delahunt, 36 Ore. 402 (51 Pac. 649, 60 Pac. 1); City of Crawfordsville v. Barr, 65 Ind. 367; Hubbard v. Moore, 132 Ind. 178 (31 N. E. 534); Yancy v. Morton, 94 Cal. 558 (29 Pac. 1111). And see Jenkins v. Cramer, 182 Iowa 161; Fort Dodge, D. M. & So. R. Co. v. Burns, 177 Iowa 51.
Indeed, it is not too much to say that the attitude of the appellant and the objections which it urges upon our attention are less defensive than obstructive, and savor more of technicality than of merit. The bond is of its own making. It is framed in words of its own choosing; and if there be any doubt of its true meaning, it is to be construed most strongly in favor of the party to whom it was given. In our opinion, the obligation on its part to perform the contract upon which its principal has made default, or to respond in damages for its nonperformance, is too clear for argument.
We find no prejudicial error in the record, and the judgment below is — Affirmed.