Oakwood Retreat Ass'n v. Rathborne
Wisconsin Supreme Court
APPEAL from the Circuit Court for Book County. The action is upon a bond in the penal sum of $15,000, executed by the defendant Horacek, as principal, and the defendants Bathborne and Kelly as his sureties, to the plaintiff, the Oahwoocl Bet/reat Association, conditioned that Horacek should faithfully keep a certain agreement entered into between him and the plaintiff.
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APPEAL from the Circuit Court for Book County. The action is upon a bond in the penal sum of $15,000, executed by the defendant Horacek, as principal, and the defendants Bathborne and Kelly as his sureties, to the plaintiff, the Oahwoocl Bet/reat Association, conditioned that Horacek should faithfully keep a certain agreement entered into between him and the plaintiff. Such agreement (as stated in the complaint) is to the effect that Horacek should furnish the materials therefor and erect for the plaintiff a certain building in the village of Lake Geneva, in aceord-anee with, certain…
1Opinion of the CourtLyoN, J.
The complaint does not state that the architect, Edbrooke, has ever adjusted any claim made in this action on account of the alleged breaches by Horacek of his agreement with the plaintiff. The position of counsel for the appellant is that such adjustment is a condition precedent to the right of the plaintiff to recover on the bond in suit, and hence that, in the absence of an averment of such adjustment, the complaint fails to state facts sufficient to constitute a cause of action. If the premise be true, the conclusion would seem logically to follow. The question to be determined is,…
2Cases cited4 opinions
- Hudson v. McCartneyWisconsin Supreme Court · 1873
- Canfield v. Watertown Fire InsuranceWisconsin Supreme Court · 1882
- Phœnix Insurance Co. v. BadgerWisconsin Supreme Court · 1881
- Morgan v. MorganMichigan Supreme Court · 1886
3Cited by7 opinions
- Vangindertaelen v. Phenix InsuranceWisconsin Supreme Court · 1892
- Nurney v. Fireman's Fund InsuranceMichigan Supreme Court · 1886
- Keachie v. Starkweather Drainage DistrictWisconsin Supreme Court · 1919
- City of Wauwatosa v. Jacobus & Winding Concrete Construction Co.Wisconsin Supreme Court · 1937
- Boden v. MaherWisconsin Supreme Court · 1897
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