260 N.W. 869 | Minn. | 1935
This action grows out of the same road work involved in General Motors Truck Co. v. Phillips,
The assignments of error are many. However, the correctness of the ruling denying defendants' motion to exclude two of the main items of plaintiff's claim presents the decisive question on this appeal. To what extent the bond of a contractor executed in conformity with 2 Mason Minn. St. 1927, § 9700, as amended by L. 1931, c. 229, secures those who furnish labor and material for the repair of machinery used in the performance of the contract has been considered in Miller v. American Bonding Co.
"In the absence of proof that they were at least substantially consumed on the Norden contract, there can be no recovery for such things as assemblies of cylinder blocks and pistons, new main bearings, drive shafts, universal joints, storage batteries or tires."
General Motors Truck Co. v. Phillips,
Defendants contend that Dennis v. Enke,
In our opinion the two assemblies constituting the two items above referred to are not minor and inexpensive or incidental repairs, and the finding that those two items "were such [parts] as usually will ordinarily break or wear out on motor trucks during the course of road construction work and were not" major replacements is not sustained by the evidence. There must therefore be a new trial. We are not certain that all the parts charged in the two assemblies referred to went into them, so injustice might be done by directing the sums above mentioned to be eliminated. There are also some other items which were objected to because the evidence plaintiff promised to adduce to connect them with the job was not supplied. We therefore conclude there should be a new trial as to all the claims plaintiff may assert.
Order reversed.
JULIUS J. OLSON, JUSTICE, took no part. *488