from acquiring by assignment, and enforcing, a claim perfected by another.25 Where a material man signs a writing that he is willing to hold the contractor personally for lumber furnished, "and release my right to take a lien, provided he receives the amount due him for the erection of said house," whereupon a building association advances some of the necessary money to the owner, who pays only part of it to the contractor, the material man's lien is not thereby released.255 In an action by a material man to foreclose a mechanic's lien, the owner of the property answered that P. was the lowest bidder for the work, but, being unable to give bond, plaintiff had agreed that he would waive his lien on the work, in consideration of his being allowed to furnish the material therefor. The testimony showed that a memorandum of this agreement was made, but that it was to be reduced to writing and signed by the parties. Before the agreement was reduced to writing and signed, the owner let the contract for the work to P. On this showing, it was held that the contract was not to be complete until signed by the parties, and that the material man was entitled to a lien.256

Bond by Contractor against Liens.

§ 750. Some mechanic's lien statutes provide that if the contractor gives bond, with sureties, conditioned to pay all accounts that may accrue against the property, then no mechanics' liens can attach; and sometimes the contractor gives such bond by agreement without any statutory provision therefor. No new consideration is essential to support a bond given by a building contractor to the owner after a contract between them has been entered into, and the work has been commenced thereunder, where such bond is given pursuant to a prior agreement therefor between the parties. Where the contract for erection of a building between the owner and contractor is void for failure to record the same, or other defects, the bond thereto attached, conditioned that the contractor will not permit any valid claim or lien to be placed on the building, is void

254 Hines v. Cochran, 62 N. W. 299, 44 Neb. 12.

255 Albrecht v. Lumber Co., 26 N. E. 157, 126 Ind. 318.

256 Irish v. Pulliam, 48 N. W. 963, 32 Neb. 24.

257 Oberbeck v. Mayer, 59 Mo. App. 289.

237

258

also; but a bond by a contractor indemnifying an owner against liens on his building is valid, though the plans and specifications forming part of the building contract were not filed with the county recorder.2 259 A statutory bond against mechanics' liens is not vitiated by the fact that it contains other conditions in addition to those required by the statute.260 Under a statute which provides that a contractor's bond with the owner, for the use of any person who shall furnish labor and material, may be filed at any time after the making of the contract, it is not essential that the bond should be filed before the institution of a suit to enforce a lien, in order to have the effect of discharging all liens accruing prior to such filing; but in such case it is proper to proceed with the suit for the purpose of ascertaining the amount due without decreeing a lien.202

261

263

§ 751. A bond to secure the obligees "against all claims, or suits at law, or both," includes claims for labor and materials enforced by bill in equity by virtue of the mechanic's lien law." In a case in Rhode Island, where it appeared that the petitioners contracted to construct a building, and gave bond for performance of their

258 Stovell v. Neal, 27 Pac. 192, 90 Cal. 213. Code Civ. Proc. Cal. § 1183, provides that a building contract which is not recorded before work is commenced thereunder, when the contract price exceeds $1,000, shall be void, and no recovery shall be had thereon by either party thereto. Held, that a bond in the sum of $5,000, given by a contractor, with sureties, to the obligee, who is the owner of a building, to secure him against any claims, demands, or liens for labor or materials furnished in the construction of such building, and which refers to a written contract, that has not been recorded, made between the principal obligor and obligee, is not within the meaning of the statute, and may be enforced without violating the provisions of the above section. Kiessig v. Allspaugh, 27 Pac. 662, 91 Cal. 234.

259 Blyth v. Robinson, 37 Pac. 904, 104 Cal. 239.

260 Atchison, T. & S. F. R. Co. v. Cuthbert, 14 Kan. 212.

261 Martin v. Swift, 12 N. E. 201, 120 Ill. 488. Where a contractor's bond is given under the statute relating to mechanics' liens, conditioned to pay all claims which might be the basis of liens, no lien can thereafter attach, and those previously filed are discharged. Risse v. Mill Co., 40 Pac. 904, 55 Kan. 518.

262 Martin v. Swift, 12 N. E. 201, 120 Ill. 488, reversing on this point Swift v. Martin, 20 Ill. App. 515.

263 Wilson v. Davidson Co., 3 Tenn. Ch. 536.

264

contract, also conditioned to save the owner harmless "from any and all mechanics' liens in any manner arising from or growing out of said contract," it was held that the bond covered only liens for work done and material furnished for petitioners by laborers, subcontractors, or material men, and did not embrace liens which the law might give the petitioners themselves.2 It has been held in Kansas that the giving of a bond as provided for by one mechanic's lien act would not operate to divest a lien which had accrued under a previous act.265 Where the statute requires both the giving of a bond and the posting of a notice in order to divest liens, such liens will not be divested by the mere giving of a bond.266 A building contractor's bond, conditioned to indemnify the owner against liens and all outlays by him on account of work done or materials furnished for the building, is broken, and the liability thereon accrues, upon the contractor's failure to pay claims for work or materials, and their payment by the owner to prevent the filing of claims, although they might have been defeated by a proper defense against their at tempted enforcement. 267 In a recent Nebraska case it appeared that the contractor for the erection of a building gave a bond to "faithfully perform all the covenants and agreements contained in the building contract," etc. The contract provided that he was "to furnish all the material, such as lumber, hardware, brick, lime, sand, paints, oils, etc., as per specifications." It was held that a failure to pay for such materials, whereby a mechanic's lien was filed on the building and lot, was a breach of the condition of the bond, and rendered the builder and his sureties liable thereon.268 But a bond by a contractor conditioned that he should protect and save the owner harmless from liens for labor and materials is not broken by the mere existence of unpaid accounts for labor and materials, for which no liens have been perfected by proper proceedings; 269 and it has been held that a bond given to secure the owner and keep him harmless from all liens and claims of liens is not broken by the mere

264 Bassett v. Swarts, 21 Atl. 352, 17 R. I. 215.

265 Main St. Hotel Co. v. Horton Hardware Co., 43 Pac. 769, 56 Kan. 448. 266 Kraus v. Murphy, 38 N. W. 112, 38 Minn. 422.

267 Overveck v. Mayer, 59 Mo. App. 289.

268 Kiewit v. Carter, 41 N. W. 286, 25 Neb. 460.

269 Simonson v. Grant, 31 N. W. 861, 36 Minn. 439.

filing of lien claims, but only by liens which have actually damnified the owner.270

Liability of Sureties on Contractor's Bond.

272

§ 752. Sureties on a contractor's bond are not liable to an owner for liens of subcontractors if the owner voluntarily paid the contractor after he knew of the existence of such liens,271 or if he paid without ascertaining whether there were any such liens or not.2TM1⁄2 The sureties on a bond to secure the performance of contract for the erection of a building for a county, which provided that the contractor should obtain a certificate to the effect that no mechanics' liens or other claims are chargeable to the county, are not liable for claims against the contractor for materials furnished for which the material men have no claim or lien against the county.273 In a recent case it appeared that a builder took a bond from the contractor, with sureties, conditioned that it should be void if the contractor should pay all claims for work and material. The contractor having abandoned the contract, the owner completed the building, and sued on the bond to recover for his expenditures. It was held that the sureties were not liable, the breach assigned not being the same as that for which they became responsible.274 In a New York case it appeared that a city was indebted to a contractor for building a schoolhouse, and subcontractors had filed claims which, under the New York law, gave them liens on the fund due the contractor. He obtained payment from the city in full, by giving bond conditioned to protect the city from "any judgment, costs, damages, claims, or recovery." After this the subcontractors obtained judgments establishing their liens, and directing the city to pay same out of the contract money in its possession or secured to it by bond. It was held that the sureties on the contractor's bond were liable for these judgments, although the city could not have been compelled to pay them, since it no longer had any such money in its possession. 275 Sure

270 Carson Opera House Ass'n v. Miller, 16 Nev. 327.

271 Taylor v. Jeter, 23 Mo. 244.

272 Lucas Co. v. Roberts, 49 Iowa, 159.

273 Hunt v. King (Iowa) 66 N. W. 71.

274 Holcombe v. Mattson, 52 N. W. 857, 50 Minn. 324.

275 Mayor, etc., of New York v. Crawford, 19 N. E. 501, 111 N. Y. 638.

ties on a contractor's bond, who, on the abandonment of the work by the contractor, undertake to complete the contract by an agent, are responsible to the owner for liens imposed on the property by reason of debts incurred by their agent.276

Right of Sureties to Assert Lien.

§ 753. As a general rule, a surety on a contractor's bond conditioned for the performance of the contract and the delivery of the building to the obligee free from all charges, liens, mechanics' liens, or other incumbrances cannot enforce a lien against the property for labor or materials furnished the contractor.277 But if the bond is void from the beginning, or has been discharged by the act of the owner, ,279 the sureties may assert mechanics' liens on their

276 Robinson v. Hagenkamp, 53 N. W. 813, 52 Minn. 101.

277 Rynd v. Pittsburg Natatorium, 33 Atl. 1041, 173 Pa. St. 237; Gannon v. Presbyterian Church, 33 Atl. 1043, 173 Pa. St. 242; Given v. Reformed Church, 15 Phila. 300; McHenry v. Knickerbacker, 27 N. E. 430, 128 Ind. 77; Spears v. Lawrence, 38 Pac. 1049, 10 Wash. 368; German Lutheran Congregation v. Heise, 44 Md. 453. See ante, § 718.

278 Stovell v. Neal, 27 Pac. 192, 90 Cal. 213.

279 German Lutheran Congregation v. Heise, 44 Md. 453. In this case it appeared that a contract for building a church provided that the contractor should find the material, free from all claims, liens, and charges whatsoever. The contractors, with W. and other sureties, executed their joint and several bond, in the penalty of $50,000, for the faithful execution of the contract. W. filed a bill in equity to enforce a lien for bricks furnished the contractors, and used in the building, praying a sale thereof in default of payment of the claim. The trustees answered, setting up the contract in defense. W. set up, in reply, that there were extensive changes and alterations made in the contract, other than those provided for, without the assent of the sureties, and such as enlarged the liability of the contractors; and that, therefore, the sureties were discharged. On this showing, the court held: (1) That unless the bond had been discharged, as contended by W., it stood liable for all the liens that had been claimed and established for work and materials supplied to the contractors for the erection of the church, and which might not be paid by the contractors, or with the money due them on the contract; and it would be against equity and justice to allow W. to proceed with the enforcement of his lien, even to the sale of the church, regardless of the bond that no such lien should exist. (2) That the bill of W. should be retained, giving the church corporation a reasonable time within which to bring an action on the bond, to have tried and determined the questions whether the sureties on the bond had been dis (785)

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