219 N.W. 943 | Minn. | 1928
The surety answered separately and pleaded the provision of § 31, c. 4, of the city's home rule charter which prescribes that when the amount of any proposed work exceeds $100, published notice calling for bids must be given in a certain manner. It also contains this provision: "The council shall regulate the making of bids and letting of contracts by ordinance." Then the answer sets out the ordinance enacted pursuant to the power just recited. The substance of this ordinance is that when the contract involves more than $200 the contractor shall enter into a bond with the city, "which bond shall, in the case of a contract for the doing of public *581 work, conform to the requirements of the laws of the State of Minnesota, relating to such bonds, and which bond shall, in the case of the furnishing of materials or property, be conditioned for the full performance of such contract in accordance with its terms, * * * and for compliance with all the requirements of the law." The penalty shall not be less than the contract price. The surety of the bond must be a surety company holding a certificate from the state insurance commissioner stating that it is authorized to contract as surety on bonds in the state, except that by a vote of four-fifths the council may allow personal sureties. The bond must be approved by the city attorney and city treasurer and filed with the city treasurer and a copy of the bond filed with the contract in the office of the city auditor.
There is no allegation that there was a failure to comply with the charter or ordinance. But the gist of the defense is in this allegation: That the contract was completed and accepted by the public authorities on or prior to September 13, 1926, and that plaintiff failed and neglected to serve within 90 days thereafter a written notice upon the surety specifying the nature and amount of its claim and the date of furnishing the last item thereof as provided by G. S. 1923, § 9705. To this defense plaintiff demurred. From the order sustaining the demurrer the surety appeals.
The sole question presented is whether or not the provisions of G. S. 1923, §§ 9700 to 9705, apply to this bond, and particularly the last section which prescribes a condition precedent to suit which must be complied with; or, in other words, are the charter and ordinance provisions controlling? It is contended on authority of Breen v. Kelly,
We are of the opinion that the sentence quoted above from § 31, c. 4, does give such power. It may by ordinance regulate the making of bids and letting of contracts. To the letting of contracts is closely connected the securing of their performance by proper bonds. Grant v. Berrisford,
The decision in Johnson v. City of Duluth,
Plaintiff under the express provision of the bond has the right to bring suit thereon. Jefferson v. Asch,
The order is affirmed. *583