Kiessig

I concur in the judgment and the opinion of Mr, Justice De Haven, except that I think the case distinguishable from that of Schallert-Ganahl Lumber Co. v. Neal

Garoutte, J., and Harrison, J., dissented.

The plaintiff in this action seeks to recover $1,807.25 upon a building contractors’ bond executed to him by the defendants Allspaugh and Hall as principals, and by the defendant Lundeen as surety. The bond sued upon was executed on October 15, 1887, and after reciting the fact that . the principals therein had upon October 14, 1887, entered into *453 a contract with the plaintiff here to build for him a certain house, for the price and in accordance with the specifications contained in said contract, proceeds; “Now, therefore, we, A; M. Allspaugh and M. S. Hall, as principals, and H. V. Poser and N. P. Lundeen, as sureties, bind ourselves, our heirs, executors, and successors in the sum of $5,000, to forever save and hold harmless the said Charles Kiessig against any claims, demands, or liens of all characters whatsoever for material or labor expended or used in the building, constructing, and finishing of the said house.” The original building contract was not recorded, and the price therein agreed to be paid for the construction of the building was $8,000. Work under the contract was commenced after the execution of the bond just referred to, and the building was completed by…