Hahn v. Wickham

¶11. CONTRACT : of nSility0 ■ or sureties. The plaintiff’s claim is stated very obscurely, but we infer it to be, whether it is sufficiently stated or hot, that he was compelled to pay more than ’ S. i. J ^e subcontract price in order to comply with his contract with the county to deliver the bridge to the county free of mechanic’s liens. There is no pretense that Wickham did not do the work according to the plans and specifications, but that the work when done cost the plaintiff, in order to enable him to keep the bridge clear of liens, more than he agreed to pay.

¶2The defendant Daniels insists that such fact did not create a breach of the bond, and we have to say that it appears to ns that the position is well taken. Wickham’s contract is silent in regard to liens, and we do not understand that the bond signed by Daniels as Wickham’s surety was designed for anything more than to secure the performance of Wick-ham’s contract. Besides, it was held in Loring & Co. v. Small, 50 Iowa, 271, that mechanic’s liens cannot attach upon a county bridge.

¶3It appears to us, therefore, that the plaintiff has no cause of action, and that such fact appears upon the face of his petition. The defendant Daniels, however, did. not demur, but after verdict he moved to set the same aside on the ground *547that it was contrary to the law and the evidence. The plaintiff insists that if the allegations of the petition are proven no valid objection can be made to the verdict. The petition, however, was defective in substance, and in our opinion the verdict should have been set aside and the judgment thereby arrested. Edgerly v. Farmers' Insurance Company, 43 Iowa, 587; Code, § 2650.

¶4Beversed.