104 Neb. 389 | Neb. | 1920
On motion for rehearing. Former opinion reported in 103 Neb. 614.. Action upon a bond given by a contractor who had engaged to build a schoolhouse. The terms and conditions of the bond were not in strict compliance with the statute, but it was held that the law' entered into the contract, and that it was a statutory bond. Upon a motion for rehearing, argument was ordered upon the question whether a bond given under a statute which requires two sureties is valid when signed by one only. Upon this point it is said in the former opinion: “But when a surety signs a bond that specifies upon its face that only one surety will sign, the party who is recited in such bond as surety does by signing it ‘waive the defect.’ ” Did the bond in question so specify? It recites: “That J. F. Roeser, of Exeter, Nebraska, hereinafter called the principal, and C. C. Wullbrandt, as sureties, are jointly and severally held,” etc. In other parts we find recited, “That no liability shall attach to the sureties unless;” “Unless such obligee shall deliver such notice to the sureties“That in no event shall the sureties be liable for a greater sum,” etc.
Considering the whole bond, we are now of the opinion that the inference drawn in the former opinion, that-the bond “specified upon its face that only one surety will sign,” is not warranted.
No waiver was alleged in the petition. It fails to show a proper execution of the bond as the law requires. The demurrer therefore was properly sustained. The cases
Affirmed.