Salmen Brick & Lumber Co. v. Owen

JANVIER, J.

(dissenting). I find myself unable to agree that this court should rewrite the bond in question so as to make it include an obligation more onerous than the surety was willing to voluntarily undertake.

At the time the bond was written by the surety it had knowledge of the fact that under the decisions of our Supreme Court a surety on a statutory building bond given under the Act of 1922 could not set up as a defense the failure of the materialman to file his lien within the prescribed thirty days. Presumably, it had had experience with materialmen who had neglected to file their claims and who, months and sometimes years, after the completion and acceptance of a job had proceeded against the surety who, during all this time had been under the impression that the matter was closed. Having had such experience this surety was unwilling to sign a statutory bond and desired to stipulate that its liability must be established within a fixed time. To this end it inserted in the bond the provision that it would be liable to such material-men and laborers and only such as should file their liens within thirty days after the acceptance of the work.

If the act prohibited the execution of any building contract except such as were protected by a statutory bond then I can easily see how any bond given in connection with such a contract should be construed as a statutory bond regardless of its provisions. As I read the Act of 1922, however, it does not prohibit such a contract, nor does it require any bond at all. Reading it as a whole it seems to intend to give to the owner a method of limiting his liability by obtaining a statutory bond and by requiring that if he wishes to limit his liability he shall record the, contract and the bond in the mortgage office. That it did not intend to make it absolutely mandatory' that a bond be obtained is evidenced by the fact that the act provides that if the owner does not obtain such a bond or does not record it and the contract he shall be liable to the same extent as the surety would have been.

If then he is not forced to obtain a bond at all, who but himself can complain if the bond he does obtain, does not contain all the provisions the materialmen would like it to contain? If it is not a statutory bond the owner is liable and the property is liable to such claimants as do not sleep on their rights but file their liens seasonably.

There have been a great many cases in which bonds were shown to have differed from those required under the particular statutes under which they were thought to have been given and in all of these cases the courts have held that although they were not statutory bonds they were good as conventional obligations. If then there is such a thing as a conventional bond on a building contract, I fail to see why this is not one. To hold that this is a statutory bond is tantamount to holding that any bond given in connection with a building contract no matter what its terms is a statutory bond and that the surety thereon is liable not as he bound himself but as the statute would have bound him had he written a statutory bond.

Another thing that induces me to feel that we should not rewrite a bond of this kind is the fact that the very statute in question requires the bond to be recorded. Why, is this requirement contained in the act if all bonds given are to be construed as having been given in compliance with the act? The requirement that the bond be recorded is contained in the statute so that a person intending to sell material for a particular building may examine the records of the mortgage office and determine before he sells the goods whether ' the bond given is such a one as will protect him. If he is not satisfied with it he need not sell the goods.

The provision inserted in the bond in question, when recorded in the mortgage office, was notice to the world, including the claimant here that if recovery was to be had of the surety, the lien must be filed within thirty days of the acceptance of the work. Having furnished the material in the face of that stipulation in the bond, the claimant should be bound by it, and, having failed to bring himself within its terms should be held to have lost his rights against the surety.

For these reasons I respectfully dissent.