National Investment Co. v. Schickling

Mitchell, J.

The record does not present the question which defendant Haas seeks to raise by his first assignment of error. We construe the statement in the case that the evidence was “received subject to the objection” as meaning that the court reserved its ruling upon its admissibility. If it does not mean that, then it means that the court received the evidence unconditionally, overruling plaintiff’s objection, in which case, of course, the defendant would have no ground for complaint. Where, upon the trial, the court reserves its ruling, and takes the question under advisement, the *286 “case” or bill of exceptions should show how the question was finally disposed of. Herrick v. Morrill, 37 Minn. 255 , ( 33 N. W. 849 ;) Bitzer v. Bobo, 39 Minn. 18 , ( 38 N. W. 609 ;) Ambuehl v. Matthews, 41 Minn. 537 , ( 43 N. W. 477 .)

It has been the inflexible rule of this court, from Bazille v. Ullman, 2 Minn. 134 , ( Gil. 110 ,) down, that questions arising upon exceptions to the ruling of the court upon the trial cannot be examined upon ajjpeal unless they are presented by a case or bill of exceptions prepared according to the statute; that error cannot be alleged upon, or shown by, any statement of what took place at the trial, contained in the findings of fact, or the memorandum of the court attached thereto. This leaves but one question to be considered on defendant’s appeal. This is an action upon a bond of indemnity against mechanics’ liens on certain real estate which defendant Haas executed as surety for his codefendants. The material facts may be briefly stated thus: The plaintiff had agreed to make loans, aggregating (including commission) $5,875, to the defendants Bchickling, Arbuckle, and Yager, respectively, to be secured by ten mortgages on five several pieces of land, upon each of which a dwelling was being erected, — two mortgages, aggregating $1,175, to be on each tract.

' The condition of the bond in suit, after reciting the erection of these houses, and the execution of these ten mortgages, is that the principals should pay for all labor and materials performed or furnished for the construction of the houses, and save the premises free. from mechanics’ liens. Owing to the fact that one of the houses had been sold, no loan was in fact made on it, and the two mortgages thereon were surrendered; the plaintiff merely lending $4,700 on the remaining eight mortgages on the four other houses. It is claimed that this was such a change in the contract to which the bond related as released the surety. This contention is not sound. It is undoubtedly true that, where a bond is conditioned for the performance of a contract, any material alteration of the contract by the parties thereto, without the consent of the surety, will discharge the latter. But that is not this case. What the surety obligated himself for here was that his principals would save harmless from mechanics’ liens the premises upon which the plaintiff *287 was about to take mortgages. The fact that no money was advanced, and no mortgages taken, on one part of the premises, had no effect except to save the surety from any liability on account of liens on that part.

There is nothing in plaintiff’s appeal. If, as the court finds, a part of the money loaned the principals had not been paid over to them, but still remained in its hands, it was its duty to the surety to apply the same towards paying off the liens on the premises; and, it not having done so, the defendant is entitled to have the same deducted from the amount of the liens which the plaintiff had paid.

The new facts stipulated on pages 71 to 74 of the paper book are ■clearly insufficient to show an authorized or justifiable disbursement ■of this money, so as to relieve the plaintiff from liability to credit ■defendant for the same in this action.

For anything that appears, the action by Voak and others to recover this money from plaintiff was instituted not only.after default in the conditions of the bond, but also after plaintiff had paid off the loans on the mortgaged premises, in which case it had, if interposed, a perfect defense to the action, which, in justice to the surety, it ought to have interposed or tendered him in defense of the action.

In each appeal the order appealed from is affirmed.

Vanderburgh, J., took no part.

.(Opinion published 57 N. W. Rep. 663 .)