
    O. H. BJOIN v. WILLIAM ANGLIM and Another.
    
    April 27, 1906.
    Nos. 14,655—(50).
    Execution of Bond.
    A bond, wbicli upon its face purports to be an obligation of a principal ■ and bis sureties to indemnify a third party from loss under a contract’ with the principal, is void as to the sureties, unless executed by the princi- - pal.
    
      Pleading.
    In this, an action by the obligee to enforce the obligation against the sureties on such bond, the complaint should have set out the fact that the sureties waived its execution by the principal and authorized its delivery to the obligee as a valid obligation. In the absence of such allegations the complaint did not state facts sufficient to constitute a cause of action, and upon the trial the sureties were entitled to judgment upon the pleadings.
    Action in the district court for Polk county to recover from defendants William Anglim and C. D. Billings, as sureties upon an indemnity bond, the sum of $922.23. The case was brought on before Watts, J., who, during the trial thereof, granted a motion for judgment in favor of defendants upon the pleadings. Prom an order denying a motion for a new trial, plaintiff appealed.
    Affirmed.
    
      B. 0. Hagen, for appellant.
    
      Martin O’Brien, for respondents.
    
      
       Reported in 107 N. W. 558.
    
   LEWIS, J. •

The complaint set forth that one Prank Mageau, a contractor, entered into a contract with appellant to construct a dwelling house according to certain plans and specifications, and that respondents, for the purpose of securing appellant, executed a bond to him in the penal sum of $1,000, conditioned upon the faithful performance of the contract; that there was a default in the contract, and that Mageau was indebted to appellant in the sum of $922.23, for which judgment was demanded. The contract and bond were partly written and partly printed upon opposite sides of the same paper, and the commencement of the bond reads:

Know all men by these presents, that we, Prank Mageau, -, and - — , of the city of Crookston and county of Polk, state of Minnesota, are held and firmly bound unto O. H. Bjoin, of said county and state, etc.;

and the closing is as follows:

In testimony whereof, witness the hands and seals of the said Prank Mageau,-, and-hereto affixed- the day and year above written.

ín answer to the complaint respondents allege several defenses, among which the fact that respondents signed the bond upon the condition that it was to be signed by Mageau as principal, and that they signed as his sureties, and not otherwise, and, further, that respondents never consented to the delivery of the bond to appellant, unless signed and executed by Mageau. These allegations were put in issue by a reply. After the cause had proceeded for some time at the trial, respondents made a motion for judgment on the pleadings, which was granted, and this appeal was taken from an order denying a motion for a new trial.

The case must be affirmed upon the ground that the complaint does not state a cause of action. It conclusively appears from the complaint that the bond was intended to be one of surety, and not an original contract of indemnity on the part of respondents. The condition of the obligation was that Mageau, his executors, administrators, or assigns, should well and truty keep and perform the covenants, conditions, and agreements of the contract entered into with appellant. Mageau was the principal, and respondents the sureties. If appellant relied upon this document as an original agreement of indemnity, without regard to its execution by Mageau, then it was necessary to set out such facts in the complaint, and allege that the bond was executed and its delivery authorized by respondents for such purpose; and in the absence of such allegations the pleading was fatal, and could be taken advantage of during the trial by a motion for judgment on the pleadings.

Order affirmed.  