Macleod v. National Surety Co. , 133 Minn. 351 ( 1916 )

Hallam, J.

(dissenting).

Plaintiffs paid to their subcontractor, the principal on the bond, $300, after the greater part of the damage which they now seek to recover had accrued, and at a time when, according to the claim of plaintiff and the verdict of the jury, nothing was due. Had the amount not been paid the demand of plaintiff in this action would have been reduced by just that much. In my judgment this amount should be deducted from the amount of the recovery. The owner should not be permitted, after the violation of the contract by the principal and the accrual of the damage on account thereof, to continue making overpayments to the principal, and then to recover the amount back from the surety.