Klokke v. Raphael

This is an action to recover upon a bond signed by appellant as one of the sureties and given to secure the performance of a builder's contract, which, among other provisions, contained the following:

"The contractor shall, on or before thirty-five days after the acceptance of the building, cancel and release the said building and premises from all claims that may have accrued against the said building by reason of the aforesaid erection."

The condition of the bond was that if the contractor should strictly keep and perform all the covenants of the contract by him to be kept and performed, and should on or before thirty-five days after completion of the building cancel and release the said building from all liens that might have accrued against the same in and by reason of the performance of said contract, and should save the owner free and harmless from all damages therefrom, as in said contract provided, the bond should be void.

It was provided in the contract that the cost of the building should be paid in installments, of which the sum of $558.75 was payable on completion, and $1,117.50 payable *Page 3 thirty-six days thereafter. The building was completed according to the contract, and plaintiff, on June 20, 1903, duly accepted the same. Prior to said acceptance and before the expiration of thirty days thereafter a number of mechanics and laborers who had been employed in the construction of the building by the contractors, and certain others who had upon the order of said contractors furnished material for said building, served notice that they had not been paid for said labor and material, and demanded that plaintiff withhold payment of the balance in his hands due said contractors under the terms of said contract. Whereupon, plaintiff retained in his hands said installment of $558.75, which became due to said contractors upon the completion of the building, and also withheld payment of the last installment of $1,117.50, and made demand upon said contractors that they cancel the demands of said laborers and materialmen and release the building from the lien thereof. The contractors neglected and failed so to do, and left the state. Within thirty days after completion of the building notice of eleven liens, claimed on account of labor performed and material furnished, were filed against the building and premises.

The complaint alleges that thereafter suit was instituted to foreclose said liens and said contractors, though made parties to said suits, neglecting upon demand to do anything in the premises, plaintiff, by reason of the failure of the contractors to release said building from said liens as covenanted in said contract, and in order to protect his interest in the suits to foreclose said liens against his building, was obliged to, and did, employ an attorney to represent him therein, and was compelled to pay said attorney a large sum of money for services rendered in said suits. That by reason of said contractors' failure to comply with the terms and conditions of their contract, for the performance of which said bond was given, plaintiff was damaged in the sum of money which he had paid and for which he had become indebted to his attorney, which damage, it is alleged, amounts to $500.