Costello v. Doherty , 55 Minn. 77 ( 1893 )

Gileillan, 0. J.

The charier of the city of Duluth provides, (Sp. Laws 1801, c. 55, § 15,) in reference to letting contracts for local improvements, for a bond on the part of a contractor, with two sureties, to the city as obligee, conditioned for the faithful performance of the work according to the terms of his contract, and the payment of all material and labor used or employed in making said improvement; and that any person furnishing labor or material on the contract whose claim shall not be paid as it becomes due may sue in his own name on the bond; and that “an award of a contract by the board of public works shall become binding upon the city upon the same being approved by the common council, and upon the approval by said board of the ‘contract bond’ of the bidder, but not before or otherwise.” This action is for labor and material against the principal and sureties in such a bond, executed June 25,1891, reciting the making between Doherty (the principal obligor) and the city of a contract dated June 25, 1891, “for grading and otherwise. improving Bench and Birch streets and the respective extensions thereof,” as specified in the contract.

On the trial of the action it was dismissed as to Hunger and Spalding, the sureties, for insufficiency of proof. The plaintiff at- I tempted, but failed, to prove a contract between Doherty and the city such as was intended by the bond. He offered in evidence a contract such as was described in the bond, except that it was dated and conceded to have been executed July 6, 1891. The bond was conceded to have been executed June 25, 1891, so that the contract offered was one executed after the execution of the bond, and, "prima facie, certainly not the one referred to in the bond, which is therein described as already executed. An objection was made by the surety defendants that it was not the contract mentioned in the bond, and that no jurisdiction or authority of the board of public works to make it appears. The plaintiff offered to prove by parol that there was no contract between the city and Doherty to do the work mentioned in the bond other than that offered, and that the bond was executed with reference to, and for the purpose of securing, that contract. Their offers were objected to, and the objection to them and to the contract was sustained.

Under the charter, the order in which the bond and contract are executed is not material. After the bid is accepted and approved, the bond may be executed before the contract or the contract before the bond. When the bond is executed, and the contract is to be made at some future day, the bond ought regularly to refer to and describe it as a contract to be executed in the future. Whether, in such case, if the contract is referred to as one already executed, it can be proved, contrary to the terms of the bond, that the contract secured is one to be executed in the future, is a somewhat nice question. But it need not be decided, for, in view of another question made by plaintiff, the result must be the same, whatever the decision of that question.

(Opinion published 56 N. W. Rep. 459.) Application for reargument denied November 1, 1893.

This is claimed to be a statutory bond. It is only as a statutory bond that the plaintiff can sue upon it. It must appear (in some way) that it was taken as authorized by statute to secure performance of a valid contract of the city. Where it is to secure a contract already executed, the obligors acknowledge, by executing the bond, that the contract is valid, and the bond authorized. But the execution of such a bond to secure a contract to be executed in the future, say (as in this case) eleven days after, is no evidence that when the contract is executed the preliminary acts necessary to make it valid have been done. And the plaintiff did not offer to prove the facts necessary to give the board of public works authority to make the contract. So that, had he proved all that he offered to do, still he could not have recovered.

Order affirmed.