133 Minn. 90 | Minn. | 1916
This action was brought to recover upon a drainage contractor’s bond, for labor performed in the construction of the drain, in which defendant, the surety, interposed in defense that the notice of claim required to be given by section 8249, G. S. 1913, was-not served within the time prescribed by that statute or at all; for the failure to serve which defendant claimed that plaintiff’s right of action on the bond is barred. Plaintiff demurred to this part of the answer, and defendant appealed from an order sustaining the same.
Two classes of public bonds are created by chapter 95, G. S. 1913, namely: (1) Those given by all public officers, termed official bonds; and (2) those required of public contractors, termed bonds of public contractors. As to the former, suit may be brought thereon, by leave of court, in the same manner and within the same time as upon other contract obligations. As to the latter, the contractor’s bond, section 8249 provides that no action shall be maintained thereon unless within 90 days of the “completion of the contract and acceptance of the building” the plaintiff shall give notice of his claim to the contractor and his sureties; nor unless the action is brought within one year thereafter.
The only question presented is whether the bond involved in this action comes within the second class, entitling defendant to notice before suit.
The bond given by a contractor in judicial or county drainage proceedings is expressly declared by the statutes controlling those proceedings an “official bond.” Section 5537, G. S. 1913. We held in Rosman v. Bankers Surety Co. 126 Minn. 435, 148 N. W. 454, that section 8249 has no application to actions brought thereon, and this because of the
Order affirmed.