| Neb. | Oct 26, 1892
A general demurrer was sustained to the petition in the court below and the action dismissed. The petition is as follows :
“The relator, Fred "W. Gray, of the city of Omaha, in Douglas county, Nebraska, respectfully states and informs the court that the school district of Norfolk, in the said county of Madison, on or about the 26th day of November, 1889, entered into a written agreement with one Martin T. Murphy, of Omaha, Nebraska, whereby the said Murphy agreed with the said school district of Norfolk, to well and sufficiently erect, furnish and deliver in a perfect, and thoroughly workmanlike manner, on or before the 1st day oí August, 1890, a school house situated on lots 6 and 7, in block 5, of Koeninstein’s first addition to the city of Norfolk, in said Madison county, Nebraska, according to the plans and specifications made and furnished by J. C. Stitt, architect, to the satisfaction and under the direction of said architect. In consideration of which the said school district agreed to pay the said Murphy the sum of $22,500. Providing in said contract, among other things, that on the first of each month during the progress of the work thereby agreed to be performed, the architect should make an estimate of the materials furnished on the ground and' of the work done since the last previous estimate, and upon said estimate being furnished to the said school district in Writing, it should thereupon pay the said Murphy eighty-five per cent of said estimate, and the remaining amount should be payable upon the completion of said school building. And providing further, amongst other-things in said contract, that said school district should have the right, at their election, instead of paying on the architect’s estimates to said Murphy the amount from time to time found due and payable, to pay the amount for material or labor on said building to the party or parties furnishing
“Second — The relator further represents and informs the court that for the purpose of securing to said school district compliance with the terms of said contract, the said Martin T. Murphy, as principal, and Fred W. Gray, the relator, as surety, executed and delivered to the school board of said school district their bond in the penal sum of $10,000, bearing date November 26, 1889. ' Providing in said bond that the conditions of the same were such, that whereas the said Murphy had been awarded the contraot for the erection and completion of a school building iu Norfolk, Madison eourity, Nebraska, for the agreed price
"Third — The relator further represents and informs the court, that on or about the 1st day of December, 1890, the school board of said district notified the relator that said Martin T. Murphy had not complied with the terms of said contract in the erection of said school building, and demanded of the relator compliance with the terms of said contract, under and by virtue of the provisions of the said bond on which the relator was surety, and that accordingly the relator proceeded to confer with the said school board of said school district and the said Martin T. Murphy, and in consideration of the premises and of one dollar and for other good and valuable consideration and of the liability of the relator upon said bond, the relator secured from said Martin T. Murphy, by and with the knowledge and con, sent of the said school board, an assignment to him, the relator, of all right, title, and interest of the said Murphy, in or to said contract, and authority from said Murphy to collect from said school district the amounts due and to become due on said contract; which assignment and authority was given by said Murphy, in writing, on the 11th day of December, 1890, as will fully appear by reference to the same, a copy of which is herewith filed, marked ‘ Exhibit C,’ and made part hereof.
“Fifth — The relator further represents and informs the court that the relator on the 21st day of April, 1891, completed said building in accordance with the terms of said contract between said school district and Martin T. Murphy, and the said school board of said district received said building from the relator, and were fully satisfied with the completion thereof as performed by the relator; and that there is now due the relator for the expenses, materials, skill and labor performed in the completion of said building as aforesaid the said balance of $4,315.81, and that said school district has sufficient funds in the
“ Sixth — That relator further represents and informs the court that at the time the relator commenced furnishing materials, skill, labor, and expenses of completing said school building it was understood and agreed, by and between the relator and the school board of said school district, that eighty-five per cent of the architect’s estimates, which should be made thereafter in accordance with theterms of said contract, and also the balance then due and which might become due upon said contract upon the completion of said building, should be paid by said'school district to the relator, and that in pursuance of said understanding and agreement with the said board, and with the full knowledge and consent of said school board, the relator proceeded to furnish the said skill, labor, materials, and expenses for the completion of said building, and did complete the same to the full satisfaction of said school district; that in pursuance of said understanding and agreement the said school board of said district paid to the relator on December 15, 1890, the said sum of $1,000; and on January 2,1891, the said sum of $48.22; and on January 8,1891, the said sum of $1,173.43, being eighty-five per cent of the architect’s January estimate; and on February 17, 1891, the sum of $1,109.17, being eighty-five per cent of the architect’s February estimate; and on April 24, 1891, the said sums of $85.50 and $10.50, being for extras furnished by the relator in the completion of said building; that on or about the-day of March, 1891, the said school board of said school district at a meeting thereof, adopted and caused to be spread upon the records of said board a preamble and resolution, of which the following is a copy, to-wit:
“‘Whereas, In the contract with M. T. Murphy for the erection of the school building, now nearly completed, it is provided that the school board shall have the right, at their election, instead of paying on architect’s estimates to the contractor, the amount for material or labor on such' building to the party or parties furnishing material or performing labor, and the receipts of any and all such par ties-to the amount actually due them shall be accepted by the said Murphy as though so much cash in hand paid; and
“‘Whereas, The bond given by M. T. Murphy, as principal, and Fred W. Gray, as surety, for the faithful performance of said contract, provides that if the said Murphy shall pay all laborers and mechanics for labor that shall be performed, and all material-men for material that shall be used in the erection of said building and in performing his said contract, then, in that case, said obligation to be void, but otherwise to be and remain in full force; and
‘“Whereas, There is a large number of claims filed with this board for material furnished and for labor performed in the erection of said school building which are not paid, but which this board is desirous should be paid, to-wit:
Norfolk Brick & Tile Company.................. $1,891 80
Chicago Lumber Company........................ 49 08
T. W. Wheaton...................................... 390 80
L. C. Mittelstadt.................................... 149 39
C. F. Eiseley......................................... 144 39
Acme Pressed Brick Company.................... 562 25
Jno. Nurer............................................ 6 00'
Welshans & Gibson................................. 248 26
C. W. Babcock & Co.............................. 716 00'
Edwards & McCollough Lumber Company... 4 40'
August Pasewalk................................... 6 00
Otto Buckel.......................................... 4 65
T. H. Batte.......................................... 15 00
Jno. Ingoldsby...................................... 40 OO
Adamant Wall Plaster Company................. 279 70
“ ‘ Resolved, That in order that justice may be done to all parties, it is hereby ordered that this board does hereby elect, as is provided it may do, to pay said claims and to tender to said Murphy and to said Gray receipts from said parties instead of cash to the amount actually due said parties.
Resolved, That the secretary of this board is hereby directed to issue the warrants of the district on the proper fund to the said parties for not more than the amounts mentioned and for not more than is actually due them, and to tender the receipts taken for payment to the contractor, M. T. Murphy, and to Fred W. Gray, instead of cash on estimates as heretofore, except that the claims of the Adamant Wall Plaster Company, $279.70, shall not be included nor paid for want of funds.’
“And the relator further represents and informs the court that said resolution was adopted by said school board without the knowledge or consent of the relators, and that the relator, on being informed that said resolution had been adopted by said board on the 27th day of March, 1891, thereupon proceeded to notify said board that he would refuse to receive in settlement of said contract any receipts for payments made by said board to mechanics or material-men for labor performed or materials furnished for said building except such payments be for materials furnished or labor performed after the date of the assignment of said contract by said Murphy to the relator, and that upon April 1, 1891, or as soon thereafter as the relator could be heard, he would apply to Hon. Isaac Powers, Jr., judge of the district court of the seventh judicial district of Nebraska, for a writ of mandamus requiring said board to pay to the relator all sums of money due upon the estimates for the month of February which had been made,
“'To the Board of Education of the School District of Norfolk: You are hereby notified that I demand all moneys due and to accrue upon the contract heretofore entered into between M. T. Murphy and your honorable board for the construction of a high school building in the said district? and I shall refuse to receive in settlement of such contract any receipts for payments made by you to mechanics or material-men for labor performed or material furnished for said building, except such payments be for labor performed or material furnished since the assignment of said contract by said Murphy to me, and you are further notified that upon April 1, or as soon thereafter as I can be heard, I shall apply to Hon. Isaac Powers, Jr., a judge of the district court of the seventh judicial district of Nebraska, for a writ of mandamus requiring you to pay to me all sums of money due upon estimate for the month of February already made, and estimate for the month of March, to be made on the first day of April, and shall hold you personally responsible for any misappropriation of the funds due and to become due upon said contract by payment to any other persons, or otherwise.’ ”
A copy of the contract and bond are set out as exhibits and need not be noticed.
The first objection of the plaintiff in error is that the bond in question is void on its face because it is signed by but one surety (Cutler v. Roberts, 7 Neb., 4" court="Neb." date_filed="1878-01-15" href="https://app.midpage.ai/document/cutler-v-roberts-6642405?utm_source=webapp" opinion_id="6642405">7 Neb., 4), while the statute requires at least two. In the case- cited it was held that a statutory bond must conform substantially to the requirements of the statute in respect to its penalty, condition, form and number of ¿sureties, and a surety may insist, as a defense in an action on a bond signed by but one surety
The contractor and surety were both residents of Omaha, and we are led to infer that the relator did not expect another surety to sign the bond with him but voluntarily become sole surety for Murphy. If such was the case, it would be a waiver of additional sureties on the bond. The fact that he recognized his liability to the defendant for the completion of the building is a strong, if not a controlling, circumstance to show a waiver on the relator’s part. The contract provides for monthly estimates. “On the first day of each month, during the progress of the work hereby agreed to be performed, the architect shall make an estimate of the materials furnished, and on the ground, and of the work done since the last previous estimate, and not included in any previous estimate, and when said estimate is furnished said first party in writing, said first party shall thereupon pay said second party eighty-five per cent of said estimate, and the amount remaining on completion of said contract shall become due and payable when said school building shall be fully finished and accepted by said architect and by the school board, or a committee designated by the said board for the purpose, and when the said first party shall be fully satisfied that no liens or claims of any kind exist against said property or any part thereof for which said first party would or could be liable. Provided, Said first party shall have the right, at their election, instead of paying on the architect’s estimate to the second party the amount from time to time found, due and payable, to pay the amount for material or labor on said building to the party or parties furnishing material or performing labor, and the receipt of any and all such parties to the amount actually due them shall be accepted by the second party as though so much cash in hand paid.” This pro vision,, if the allegations of
Third — The amount due appears to be admitted, but it is sought to apply the same in payment of claims instead of paying it to' the relator. This being so, the relator may sustain an action by mandamus. The judgment of the
Reversed and remanded.