This is аn action brought by the owner to recover from a surety upon а contractor’s bond on account of the breach of сertain conditions of the bond. Judgment was for plaintiff, and defendant appeals.
Rudolph P. Basta, the contractor, agreed tо erect a brick building for plaintiff under a written contract. The bond contained the provision, “Now if all of said conditions of contract are carried out * * * and the building is secured from all liens arising from thе execution of said work, this bond to be null and void. If otherwise, that any оr all the conditions of said contract should not be strictly fulfilled, 'this bond to remain in full force and effect.”
The contract provided that, if there shall be evidence of -any liens for which the owner might become liable, “the owner shall have the right to retain out- of any payment then due or thereafter to become due an amount sufficient to completely indemnify him against such lien or claim. Should thеre prove to be any such claim after all payments arе made, the contractor shall refund to the owner all moneys thаt the latter may be compelled to pay in discharging any lien on said premises made obligatory in consequence of the contractor’s default.” It is undisputed that $6,457.50 was paid by Mr. Karel for material and labor that went into the construction of the building.
After the building was completed, judgments were obtained against the owner by laborers and materialmen, aggregating the sum of $3,211.97, and costs. The aggregate оf these payments, aside from costs, amounted
• It is insistеd that plaintiff ought not to recover because there is no shоwing that the money was paid upon architect’s certificatеs as the contract provides. This is true, but at the same time the evidence shows that the surety, Prank P. Basta, was fully advised of these payments, and was present when most of them were made, and that he madе no objections. In fact all parties seem to have treated this part of the contract as being of no force or effect.
One of the conditions in the bond itself is that the building be “secured frоm all liens arising from the execution of said work.” This is a direct obligatiоn resting upon the contractor. It constitutes a separate obligation for the benefit of third persons aside from the terms of the building contract, and is not affected by the provision in such a cоntract that requires the owner to procure architect’s сertificates before making payments.
Furthermore, the building contract makes it the duty of the contractor to repay the owner all moneys which he may be compelled to pay to discharge liens,.but since the owner retained nearly enough money in his hands tо pay all liens, the contractor was only bound to repay thе excess. The lienholders could have compelled this payment by the surety under the rule laid down in Doll v. Crume,
We find no error in the record, and the' judgment of the district court is
Affirmed.