127 Minn. 330 | Minn. | 1914
On a former appeal in tbis case an order sustaining a general demurrer to tbe complaint was reversed. 115 Minn. 78, 131 N. W. 1067. Defendant American Bonding Co. tben answered, and there was a trial by tbe court without a jury. Tbe decision was .in favor of defendant bonding company, and plaintiff appealed from an order refusing a new trial.
Tbe contention of plaintiff is that tbe conclusion of law that plaintiff is not entitled to recover is not justified by tbe findings of fact.
Tbe action as against defendant bonding company is to recover on a contractor’s bond given by tbe company as surety and defendant Hilliard as principal; tbe recovery sought is for money paid by plaintiff to satisfy lien claims after tbe same bad been adjudged valid charges against its property. Tbe decision of tbe court below was
“Any suits at law or proceedings in equity brought or to be brought against said surety to recover any claim hereunder must be instituted within six (6) months after the first breach of said contract; and in no event shall any action or proceeding be brought against the surety hereunder after the expiration of six months after the date of the completion of the work under said contract.”
The bond provided that “the ‘owner’, in estimating his damages, may include the claims of mechanics and materialmen arising out of the performance of the contract, and paid by him only when the same, by the statutes of the state where the contract is to be performed, are valid liens against said property.”
Hilliard did not perform the terms of the contract, in that he did not pay for the labor and materials used in the construction of the building. April 23, 1909, plaintiff duly notified defendant bonding company of this fact. Hilliard in fact abandoned the work early in April, 1909, and plaintiff completed the building on or prior to May 1; 1909, expending $56.70 in so doing.
Liens against the property were filed by mechanics and material-men. An action was begun to enforce these liens. It does not definitely appear from the findings when the liens were filed, or the action commenced, but defendant bonding company was given notice of the pendency thereof in July, 1909, and requested to defend, which it declined to do. Judgment declaring the claims to be valid, liens against plaintiff’s property was entered February 4, 1910. The bonding company refused to pay, and plaintiff, on February 10, 1910, paid the full amount of the claims adjudged liens against the property.
The present action was commenced April 11, 1910, more than six months after May 1, 1909, the date of the completion of the building, but only two months after the judgment establishing the validity of the lien claims. On the former appeal the complaint did not show when the building was completed, and it was therefore held that the provision of the bond, limiting the right to bring actions thereon to
The decision below was that the action was barred, because not brought within six months after completion of the work under the ■contract. If this is correct, it disposes of the case, and it will be unnecessary to consider the other limitation, or any other question.
In the former opinion it was held that the complaint showed no breach of the contract that gave plaintiff a right of action on the bond until March 10, 1910, when the lien claims were paid. If the findings show no such breach until this time, we have the absurd situation of the right of action being barred before it accrues. It is true, we think, that this limitation is valid. The parties made their contract, and it is not for the courts to relieve them because it was an unwise or even an absurd contract. It is also true that, standing by itself, the provision that “in no event shall any action or proceedings be brought against the surety hereunder after the expiration of six months after the date of the completion of the work under said contract,55 is not ambiguous and not open to construction. Nor do we attach any weight to the contention of plaintiff that the work was never completed "under the contract,” But the provision must be read in connection with the entire bond, and particularly with reference to the chief purpose and object of the bond, which was to insure the faithful performance by the principal of his contract, according to its terms. One of these terms was that “the contractor shall refund to the owner all moneys that the latter may be compelled to pay in discharging any liens on said premises made obligatory in
It is not necessary to decide within what time after the payment of the lien claims plaintiff might bring its action for reimbursement. The limitation of six months after the breach would begin to run when the claims were paid, if such payment be considered the first breach of the contract. And the action would in any event have to be commenced within a- reasonable time. Clearly this action, brought two months after the cause of action accrued, was commenced within such reasonable time. We hold that it was not barred by the limitation of six months after the completion of the work.
This conclusion renders it necessary to consider whether there is any other ground upon which the decision below can be sustained.
The findings that Hilliard did not perform the terms of his contract, in that he did not pay for the labor and materials used in the construction of the building, that he did not complete the building, but abandoned the same in an incomplete condition, show conclusively a breach of the contract in April, 1909-, for which plaintiff could have brought an action on the bond. The damages from this breach
Order reversed and new trial granted.