Johnson v. Merten

This is an action on the bond of a public contractor who had agreed for the consideration of $77,872 to construct for the state of Nebraska at the asylum for the insane at Norfolk a new fireproof wing, a cottage, and a nonfireproof storehouse. William G. Merten was the contractor. According to specific terms of the building contract, it obligated the contractor, under the penalty expressed in a bond thereto attached, “to furnish all labor, materials, machinery, appliances or things necessary to construct, equip and fully build, and complete ready for use,” the buildings mentioned. The improvements were to conform to plans and specifications attached to and made a part of the building contract. In the penal sum of $25,000, with the state of Nebraska named as obligee, the bond on which the action is based, if enforceable, required the contractor as principal and the United Surety Company of Baltimore as surety to faithfully perform the obligations imposed upon the contractor by the building contract. Plaintiff furnished materials for the buildings and the contractor violated his agreement to pay for them. This is a suit on the bond for the price of the materials so furnished! Two defenses were interposed: (1) The bond was never mutually executed by the state and the surety. (2) Plaintiff was not entitled to the protection of the bond. Upon a trial of the issues in the district court, without the intervention of a jury, plaintiff recovered a judgment for the full amount of his claim, amounting to 13,803.97, April 26, 1911.

For the reasons stated in Cortright Metal Roofing Co. v. Merten, ante, p. 164, the judgment of the district court is

Affirmed.