dissenting opinion. Here all the parties interested in this estate, the debtor and those who were entitled to share with him in the proceeds of the payment, were represented in this transaction. We think the acknowledgment was good. It is next contended that the court erred in permitting interest to be computed upon this obligation. We think it very clear, from the reading of the obligation itself, that it was understood that the claim bore interest. The language is: There has already been paid on the above loan by me the sum of $1,000, leaving a balance due of $3,000 and interest." It might have been urged with much force that interest was due upon the obligation from the date of the assignment of the $4,000 claim February 2, 1887, but this claim was waived in the court below. That the obligation bore interest is manifest. Jared S. Spring, Jr., a son of John G. Spring, was a witness to the payment by Henry Spring of the $4.50 which was shown to have revived this claim. He testified, on cross-examination, that he knew there was a trial to be had of this matter before the commissioner on claims, and answered the question, "But there was a hearing before commissioners on claims before Mr. Renihan, and Mr. Powers?" thus: "I knew there was something; yes, sir. "Q. You knew that they went down there to testify in that case, your father and your uncle Dan? "A. Yes, sir." Thereupon defendant's counsel asked witness the following question: "Q. Why didn't you go down there?" This was objected to and excluded. We think there was no abuse of discretion in refusing to receive this It had not been made to appear that the witness answer. had been requested to appear before the commissioners, much less that he had been subpoenaed, and he could not well know any reason which his father had for not subpœnaing him. It may have been that he, the father, thought the testimony sufficient without that of the son. Had the father been the witness on the stand and the question as to why he did not subpoena or produce the son, a different question would be presented. The motion for a new trial was based upon the legal questions heretofore discussed, and also upon a claim of newly discovered evidence material for the defense. Affidavits were filed on behalf of the contestants made by Mr. Doran, one of the attorneys in the case, and by others, setting up that on the hearing before the commissioner on claims John G. Spring had testified that at the time of the payment of $4.50 at Rockford in 1903 no one else was present, thus contradicting the testimony of the son, Jared S. Spring, Jr., that he was present on that occasion. The learned trial judge, in disposing of this question, said: "The claim of newly discovered evidence cannot be maintained on the showing made. It consists of the affidavit of Mr. Doran, the attorney in the case for the estate of Henry Spring, and who also represented that estate on the hearing before the commissioners on claims. The affidavit is to the effect that the evidence given by one of the witnesses for the claimant was not the same before the commissioners on claims as in the court. The other affidavits are by the commissioners on claims to the same effect. No reason is suggested why this evidence was not adduced on the trial in impeachment. In no sense can it be deemed newly discovered evidence." The disposition made by the trial judge of this question was very clearly within the previous rulings of this court. See Gray v. Barton, 62 Mich. 186, and Canfield v. City of Jackson, 112 Mich. 120. The judgment of the circuit court will be affirmed. GRANT, OSTRANDER, HOOKER, and MOORE, JJ., concurred. STODDARD v. HIBBLER. PRINCIPAL AND SURETY-BUILDING CONTRACTS-BONDS-MECHAN- A building contractor agreed to build a house and to furnish all labor and material and provided a bond conditioned that the principal should well and truly indemnify and save harmless the said obligee from any pecuniary loss resulting from the breach of any of the terms, covenants, and conditions of said contract on the part of the said principal to be performed." Held, that such bond is broad enough in its terms to bind the surety for losses sustained through the payment of mechanics' liens; since simply contracting for the materials, etc., and leaving the owner of the premises to pay for them is not furnishing them in any substantial sense. Error to Wayne; Donovan, J. Submitted January 14, 1909. (Docket No. 86.) Decided April 24, 1909. Assumpsit by Edgar Stoddard and another against William H. Hibbler, principal, and the Title Guaranty & Surety Company, surety, on a building contractor's bond. There was a judgment for plaintiff on a verdict directed by the court, and defendant surety company brings error. Affirmed. Luman W. Goodenough, for appellant. Ari E. Woodruff and Frank W. Atkinson, for appellees. MONTGOMERY, J. The defendant Hibbler entered into a contract with the plaintiffs, by the terms of which he promised and agreed, for and in consideration of the sum of $3,700, to furnish all labor and material necessary to build and complete, according to plans and specifications furnished by party of the first part, a two-family double house. Plaintiffs undertook, in consideration of the 156 335 158 681 premises, to pay the consideration price in installments. Upon the execution of this contract the defendant Hibbler, as principal, and the defendant company, as surety, executed a bond in the sum of $2,000, reciting that the principal had entered into a certain contract with the obligee, describing it, and a copy of which was attached to the bond, and conditioned that the principal "shall well and truly indemnify and save harmless the said obligee from any pecuniary loss resulting from the breach of any of the terms, covenants and conditions of said contract on the part of the said principal to be performed." The defendant Hibbler abandoned the work after entering upon it, leaving unpaid in the hands of the plaintiffs about $1,300, of which $987.32 was expended in completing the work, but liens amounting to $1,595.94 were filed against the property. This action is brought to recover the amount of these liens. The circuit judge directed a verdict for the plaintiffs, and the defendant surety company brings error. The sole question raised is whether the surety company is bound by its obligation to indemnify the plaintiffs against loss arising from the payment of mechanics' liens. It is strenuously insisted that the bond of the defendant is not broad enough to make it liable for mechanics' liens. Defendant cites, as sustaining this contention, City of Sterling v. Wolf, 163 Ill. 467; Gato v. Warrington, 37 Fla. 542; Boas v. Maloney, 138 Cal. 105; Hughes v. Smith, 114 La. 297; L'Hote Lumber Manfg. Co. v. Dugue, 115 La. 669; Dunlap v. Eden, 15 Ind. App. 575. The case of City of Sterling v. Wolf presents the single question of whether, under a provision in a contract between the city and a sewer contractor that he should furnish all materials, his surety became liable to a third person for materials furnished him. This question was answered in the negative. The case of Hughes v. Smith was an action brought to recover because of the failure to take a sufficient bond as required by the statute of the State. It was held that the bond accepted was not a compliance with the terms of the statute. It throws no light upon the question involved in this case. The same thing is true of the case of L'Hote Lumber Manfg. Co. v. Dugue. The case of Dunlap v. Eden was likewise an action brought by a third person, not a party to the bond, and it was held that its terms were not such as to authorize an action brought by such third person. It is obvious, therefore, that none of the cases so far referred to bear. directly upon the question presented. The case of Gato v. Warrington does give some support to the claim made. In that case one McClatchy entered into an agreement with the appellant by which he agreed to erect, finish, and deliver, on or before January 1, 1891, in true, thorough, artisan, perfect, and substantial manner, certain buildings, according to plans and specifications attached. The appellant agreed on his part to pay the sum of $8,260 as follows, viz.: As the work progressed the said J. McClatchy was to submit his weekly pay rolls, duly signed and receipted, also for such material as might be on the ground. McClatchy secured Warrington and Kernan as sureties. They entered into a separate obligation on the same date, whereby they acknowledged themselves held and bound in the sum of $2,000 upon condition that McClatchy would fulfill in every particular the said contract for the erection of the buildings according to plans and specifications, and to deliver the same on or before the date mentioned in the contract, finished in a thorough, artisan, perfect, and substantial manner. It appeared in the case that appellant had not, in making the payments, insisted in all cases upon the pay rolls being presented signed and receipted, and had not limited his payments to material which was on the ground. This departure was urged as one ground of defense. It was also claimed that the bond did not obligate the sureties to indemnify the appellant against liens of mechanics and others. The court said: "The sureties have a right to stand upon the strict 156 MICH.-22. |