117 Iowa 10 | Iowa | 1902
The plaintiff holds, as assignee, various claims against one M. H. King, Jr., for services performed for said King in carrying out two contracts between him and the city of Des Moines for grading. When these contracts were made King executed a bond as to each, with the defendant as surety, undertaking to perform the work and pay all claims for labor and materials furnished for said work, and save the city of Des Moines harmless from any such liens or claims under the laws of the state of Iowa. Plaintiff’s assignors did not file claims with the city, as they might have done under Code, section 3102, providing that every laborer shall have such claim against the public corporation constructing a work of public improvement for the value of his services, not in excess of the contract price to be paid for such improvement, and that such claims shall be made by filing them with the proper officer within 30 days after the performance of the last of the labor. It appears that, had these .claims been filed, they could have been enforced against the city; for at the time of the completion of the work, and for 30 days thereafter, the city had funds due to King under his contract, which might have been applied to their payment. The question is whether, by failing to enforce these claims' against the city while they might have done so, plaintiff’s assignors released defendant as surety from its obligation to them on King’s bond.
The creditor does not release the surety by not enforcing his claim as against the principal unless he fails in some duty assumed to the surety by the contract, express or implied, or fails to take the proper steps on being notified by the surety to sue as provided by statute, or fails to