Stephens v. Elver
Wisconsin Supreme Court
Appeal from a judgment of the circuit court for Dane county: R. G. SiebeoKee, Circuit Judge. On March 6, 1897, one Joseph Pickering contracted with defendant to furnish the necessary materials and do the required mason work in the erection of a brick hotel building on the premises of the latter, in the city of Madison.
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Appeal from a judgment of the circuit court for Dane county: R. G. SiebeoKee, Circuit Judge. On March 6, 1897, one Joseph Pickering contracted with defendant to furnish the necessary materials and do the required mason work in the erection of a brick hotel building on the premises of the latter, in the city of Madison. Such work was to be done according to the plans and specifications prepared by Conover & Porter, architects. - The contract price for the materials and work was to be $5,349, and was to be paid in monthly instalments,— ninety per cent.- as the work progressed, on estimates' of…
1Opinion of the CourtBaRdeeN, J.
The sole question for decision in this case is whether the transactions mentioned show such a material alteration in the original contract as to release the surety. Unless this question should be answered in the affirmative, the plaintiff has' no standing in court. The rule laid down by all the authorities is that one who is a surety for the contractor on his bond to pay for all materials cannot claim a lien for materials furnished by him at the request of the •contractor. That would enable a man to exact payment for what he had promised should be paid by another. Phillips, Mechanics’ Liens,…
2Cases cited18 opinions
- Miller v. StewartSupreme Court of the United States · 1824
- Benjamin v. HillardSupreme Court of the United States · 1860
- Ryan v. MortonTexas Supreme Court · 1886
- Simonson v. GrantSupreme Court of Minnesota · 1887
- Sprigg v. Bank of Mount PleasantSupreme Court of the United States · 1840
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3Cited by19 opinions
- Getchell & Martin Lumber & Manufacturing Co. v. Peterson & SampsonSupreme Court of Iowa · 1904
- First National Bank v. Fidelity & Deposit Co.Supreme Court of Alabama · 1906
- City of Madison v. American Sanitary Engineering Co.Wisconsin Supreme Court · 1903
- Honolulu Roofing Co. v. FelixHawaii Supreme Court · 1967
- Webb v. FrengWisconsin Supreme Court · 1923
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