Milwaukee Building Supply Co v. Illinois Surety Co.

163 Wis. 48 | Wis. | 1916

KAewin, J.

The assignments of error in this case are grouped by appellant and argued under six heads and we shall treat them in the same order.

1. The first assignment of error treats the proposition whether the bond in question creates a direct liability of the surety to laborers and materialmen. The bond considered in this ease is the same bond treated and passed upon in Concrete Steel Co. v. Illinois Surety Co., ante, p. 41, 157 N. W. 543. The decision in that case as to direct liability of the surety to the laborers and materialmen controls this case.

2. The second, third, and fourth assignments of error raise the question whether the surety was discharged by acts subsequent to the execution of the bond.

J. W. Utley was the principal contractor and Illinois Surety Company, appellant here, surety on his bond given to secure Edw. Schuster & Go. Under the contract Edw. Schuster & Go. were required to retain ten per cent, out of-each payment for the final payment to he made within sixty days after the completion of the work. It is contended hy appellant that this was not done, hence the surety was discharged.

On this point the findings of the court below, supported hy the evidence, are against the appellant. It appears from the evidence that the architect in making his certificates in all cases before the final certificate deducted ten per cent, in substantial compliance with the contract.

It is further contended hy counsel for appellant under this head that payments were made to Utley before the same were due, in violation of the contract and sec. -3315, Stats.; that Edw. Schuster & Go. disregarded the contract and the statute in making such payments. The provision of the contract referred to is to the effect that payments shall not become due unless at the time of payment the contractor, “if so required,” and in any event at the time of final payment, shall deliver to the owners a satisfactory release of all liens against the premises. The final payment had not been made at the time of trial.

Nor was there any violation of sec. 3315, Stats., when construed in connection with the contract and bond, which bond contains the following waiver:

“And provided, that any alterations which may he made in the terms of the contract, or in the work to he done under it, or the giving by the owner of any extension of time for the performance of the contract, or any other forbearance on the part'of either the owner or the principal to the other, shall not in any way release the principal and the surety or sureties, or either or any of them, their heirs, executors, administrators, successors, or assigns, from their liability hereunder, notice to the surety or sureties of any such alteration, extension, or forbearance being hereby waived.”

This waiver clause authorized alteration of the contract and the facts show alteration authorized hy the waiver. Cowdery v. Hahn, 105 Wis. 455, 81 N. W. 882; Kunz v. Boll, 140 Wis. 69, 121 N. W. 601; 2 Corp. Jur. 1165, 1166.

This court Fas Feld tFat contracts of a paid surety Faye tFe features of an insurance contract. United Am. F. Ins. Co. v. American R. Co. 146 Wis. 573, 131 N. W. 994; Winfield v. Massachusetts B. & I. Co. 162 Wis. 1, 154 N. W. 632.

3. TFe fiftF, sixth, seventF, and eigFtF assignments of error relate to an alleged waiver of Freacli of tFe contract between Edw. Schuster & Go. and Utley, wFicF appellant claims occurred by acts and doings of Edw. Schuster & Go. We .shall not treat this contention or decide the question involved, because we are convinced that the waiver clause'in the bond, before referred to, authorized the acts which appellant complains constituted a breach of the contract in question.

4. TFe ninth assignment of error attacks the finding of the •court below to the effect that Edw. Schuster & Go., under contract between it and the Schuster Realty Company, agreed to keep the building free from liens which it contracted to erect for the Schuster Realty Company. This finding s’eems to be amply supported by the evidence and cannot be disturbed.

5. The tenth assignment of error attacks the tenth finding of fact, which in substance finds that because Edw. Schuster ■& Go. owned all the capital stock of the Schuster Realty Company and by reason of the relation of such companies service ■of the notices required by sec. 3315, Stats., on either of said companies, however addressed, gave the notice required by ■said statutes to both companies. We think this finding is supported by the evidence. Edw. Schuster & Go. and Schuster Realty Company were in interest substantially the same company. Edw. Schuster & Go. in fact owned Schuster Realty Company by virtue of ownership of all its stock. Albert T. Friedman was president of Edw. Schuster & Go. and vice-president of Schuster Realty Company. Max Friedman was vice-president of Edw. Schuster & Go. and Frank E. Genens .assistant secretary of Edw. Schuster & Go. and bookkeeper for Schuster Realty Company. The statutory notices under sec. 3315 were served upon the above named parties by respondents who filed liens. It will be observed that this statute requires notice to be served upon the “owner or his agent” and does not require the notice to be addressed to the owner; simply requires that “written notice to the owner or his agent” shall be given. Rotice to any officer in either Edw. Schuster & Go. or Schuster Realty Company under sec. 3315, in view of their relations to each other, was sufficient to give notice to both companies. Haynes v. Kenosha E. R. Co. 139 Wis. 227, 119 R. W. 568, 121 R. W. 124; Milbrath v. State, 138 Wis. 354, 120 N. W. 252; Fernekes v. Nugent Sanitarium, 158 Wis. 671, 149 R. W. 393.

6. Assignments of error 11 to 33, inclusive, relate mainly to alleged insufficiency of claims of subcontractors as liens by reason of failure to serve the statutory notices and insuffi-ciencies in the petitions for liens.

We have before referred to the fact that service on an officer or agent of either Ediu. Schuster & Go. or Schuster Realty Company was good servio,e on either company. It was not necessary that the notice should be addressed to any one. It-is sufficient without any, title or address or if defectively entitled or addressed. W. H. Pipkorn Co. v. Evangelical L. St. Jacobi Soc. 144 Wis. 501, 504, 129 N. W. 516. It is further insisted under this head that as to some claims, even if notices were sufficient, no liens were established because of failure to file claims for liens against Edw. Schuster & Go., the principal objection being-that the claims for lien named Schuster Realty Company only, except that of Bues-trin Construction Gompany, which names “Edw. Schuster Realty Company.” It is contended that such claims filed did not comply with sec. 3320, Stats., which requires the claim for lien to state the “name of the person against whom the demand is claimed,” because the name Edw. Schuster & Go. as owner was not stated. What has already been said we regard sufficient on this point.

Other findings of fact are attacked by appellant, but we do not regard the contentions tenable. We think all the findings of fact are supported by the evidence and that the findings support the judgment.

It seems that full costs in this court should not be allowed to defendants and respondents, but that the plaintiffs and respondents should have full costs.

By the Court. — The judgment of the court below is affirmed. Full costs may be taxed fin favor of plaintiffs and respondents. Costs to defendants and respondents are limited to $10 attorney fees and disbursements to each who has filed a brief.