the policy in litigation here seems to have been framed with a view to avoid the strained reasoning of the courts in those cases, predicated upon the use of certain words and forms of expression in the policies therein considered. The policy in this case differs materially from the contracts construed in those cases." This is true of the case at bar. By construing this contract as a whole, the conclusion is accordingly reached that it provides in plain language that, in case of loss by accident due to shooting, the liability of the company shall be one-half of the amount of the ordinary accident indemnity specified for such loss, and that therefore the ruling of the trial court was correct. Order affirmed.

RED WING SEWER PIPE COMPANY v. J. G. DONNELLY and Another.1

September 27, 1907.

Nos. 15,083-(60).

Charter of St. Paul-Contract and Bond.

The order in which a contract for the construction of a sewer under the charter of the city of St. Paul and the bond given to secure the pay. ment of amounts due materialmen and laborers under that contract are executed is not material. After the bid has been accepted and approved, the bond may be executed before the contract, or the contract before the bond. Costello v. Doherty, 55 Minn. 77, followed.

Recital in Bond.

Where the bond recites that the contract had been executed as of one date, the sureties are estopped from asserting that the president of the board of public works actually signed the contract at another and subsequent date.

Action by Materialman.

The vendor of materials under such a contract is not required as a condition precedent to an action upon such a bond, to trace the particular materials into the improvement itself, and to show that such materials were actually employed in its construction.

1 Reported in 113 N. W. 1.

Action in the district court for Ramsey county to recover $598.34, the value of two carloads of sewer pipe. Defendant Donnelly died before the trial of the action. The case was tried before Orr, J., who made findings of fact and ordered judgment against the defendant Schroeder in the sum of $384.59. From an order denying a motion. for a new trial, defendant appealed. Affirmed.

R. A. Walsh, for appellant.

Oppenheim & Hunt, for respondents.

JAGGARD, J.

This action was brought to recover the value of two carloads of sewer pipe sold to one Preston, on a bond on which the defendant Schroeder was a surety. The first carload was ordered by Preston for the Conway street sewer on June 24, 1903, the other on July 2, and both cars were delivered to Preston on July 3, 1903. Preston had contracted with the city of St. Paul to construct a sewer on Conway street. That contract was dated June 30, 1903. Defendant showed that the contract was executed on behalf of the city on July 10, 1903. The bond was executed on June 30. The court ordered judgment for plaintiff. Defendant appealed from an order denying the motion to set aside the findings and decision of the court and for a new trial.

The principal controversy in this case arises from the fact that, while the contract and the bond bear the same date, defendant showed that the contract was not signed by the president of the board of public works until some two weeks after the date of the contract.

Appellant argues with much earnestness that "sureties are favorites in the law. They have a right to stand upon their legal defenses.” There can be no question as to the soundness of this general principle., More specifically the defendant urges that the plaintiff had failed in the necessary proof of the due execution of the contract to support the bond. In this connection he refers us to Costello v. Doherty, 55 Minn. 77, 56 N. W. 459, in which, inter alia, it was said: "It must appear in some way that [the statutory bond] was taken as authorized by statute to secure performance of a valid contract of the city." In that case, however, it was distinctly set forth that, "under the charter, the order in which the bond and contract are executed is not material. 102 M.-13

After the bid is accepted and approved, the bond may be executed before the contract, or the contract before the bond.” In the case at

bar the bond recited the contract as having been duly executed. That recital estopped the defendant from availing himself of the technical objection as to the date of the contract. In Costello v. Doherty, 55 Minn. 77, 56 N. W. 459, the effect of such a recital as an estoppel was not explicitly considered. The principle in this connection is admirably stated by Collins, J., in Jefferson v. McCarthy, 44 Minn. 26, 46 N. W. 140: "It is well settled that an allegation or recital in a bond, which is certain in its terms and relevant to the matter in hand, is conclusive between the parties to a controversy growing out of the instrument itself or the transaction in which it was executed."

This rule has frequently been enforced in cases analogous to the one at bar by this court. And see County of Meeker v. Butler, 25 Minn. 363; Greengard v. Fretz, 64 Minn. 10, 65 N. W. 949; Board of Commrs. of Hennepin County v. State Bank, 64 Minn. 180, 182, 66 N. W. 143; Board of Commrs. of St. Louis County v. American Loan & Trust Co., 75 Minn. 489, 492, 78 N. W. 113; Hayden v. Cook, 34 Neb. 670, 52 N. W. 165. In general terms it is of almost universal acceptance. 16 Cyc. 699, 702; 5 Current Law, 1285; 24 Am. & Eng. Enc. (2d Ed.) 57; 27 Am. & Eng. Enc. (2d Ed.) 447, 467; 40 Cent. Dig. "Principal and Surety," §§ 91, 912; 2 Brandt, Sur. & Guar. § 816; Pingrey, Sur. & Guar. § 59; 1 Brandt, Sur. & Guar. § 52. More specifically in Brown & Haywood Co. v. Ligon (C. C.) 92 Fed. 851, a bond to secure performance of a contract recited the contract as existing, although in fact it appeared to have been executed four days after the bond. It was held, per Adams, J., in effect that the recitals of the bond controlled the date of the contract.

The rule is generally based upon principles of estoppel proper. It is also rested upon the maxim "Volenti non fit injuria." See Martin, J., in Bradford v. Skillman, 6 Mart. (N. S.) (La.) 65.

The evidence in this case sufficiently showed that the goods were sold by the plaintiff to the contractor, were of the kind appropriate for use in the performance of the contract, and were ordered by and delivered to the contractor for the purpose of being used in the execution of the contract. The analogy of the cases under mechanic's lien laws is apt. See John Paul Lumber Co. v. Hormel, 61 Minn.

303, 63 N. W. 718; Burns v. Sewell, 48 Minn. 425, 51 N. W. 224; Combination Steel & Iron Co. v. St. Paul City Ry. Co., 52 Minn. 203, 53 N. W. 1144; Howes v. Reliance Wireworks Co., 46 Minn. 44, 48 N. W. 448. It was not necessary that the plaintiff should have shown that the pipe actually entered into the construction of the sewer. Order affirmed.

THOMAS FITZPATRICK and Another v. CASPER ERNST and Others.1

Plaintiffs agreed with the owner of a building in 1902 to make all the improvements, alterations, and repairs which the owner of the building would need in the future at the regular price of work and material, with ten per cent. added thereto. From time to time between September, 1902, and September, 1903, work was ordered and performed. A bill was presented at the end of the first contract, and afterward about monthly. On November 14, 1903, plaintiffs filed the statutory statement to secure a mechanic's lien. In September, 1903, defendant became the owner of the building under foreclosure of a mortgage. It is held that plaintiffs could recover on their lien such portions of the work only as had been done within ninety days next prior to its filing.

Action in the district court for Ramsey county to foreclose a mechanic's lien. The case was tried before Olin B. Lewis, J., who found that plaintiffs were entitled to a lien in the sum of $109 and ordered a sale of the premises to satisfy the lien. From an order denying a motion to amend the findings, and for judgment notwithstanding the findings, or for a new trial, plaintiffs appealed. Affirmed.

C. D. & R. D. O'Brien, for appellants.

John F. Fitzpatrick, for respondent.

JAGGARD, J.

This is an action to foreclose a mechanic's lien. The plaintiffs claim a lien for labor and materials supplied to Casper Ernst for re1 Reported in 113 N. W. 4.

pairs and changes on the Ernst Building, an eight-story office building. Ernst, the owner of the premises during the time the materials and labor were supplied, on September 16, 1903, mortgaged them to the defendant, George Meyer, to secure the sum of $22,000. Meyer had no actual knowledge nor notice of any claim of the plaintiffs when he took his mortgage. The title afterward passed to him by foreclosure. The premises were also subject to other mortgages. The court below ordered judgment for a lien in favor of the plaintiffs for $109, being the amount of all jobs finished within ninety days of the time of filing the lien statement in the register of deeds' office. From an order denying plaintiffs' motion for judgment and for a new trial, and to amend the findings, this appeal was taken.

The essential question presented by the assignments of error is whether the items of labor and material furnished by the plaintiffs and appellants to the defendant Ernst between September 8, 1902, and September 19, 1903, were furnished under one continuing contract, or under distinct and separate contracts.

The testimony of one of the plaintiffs determines this controversy. From an examination of the direct and cross-examination of this witness, we conclude that the trial court was justified in finding, in effect, that the work consisted of a number of independent jobs, and not one entire contract. The plaintiffs agreed to make "all improvements and repairs and alterations that he (the owner of the building) would want in the future" "at the regular price, the net price, adding ten per cent. to the regular price of day's work, and ordinary pay for material." From time to time, when work was ordered, it was performed. A bill was presented at the end of the first contract, and afterward, and before the filing of the lien, about monthly. Each contract was based upon a specific order for particular work. Each performance was individual. The only thing agreed upon was the price to be paid. Price alone cannot make a contract. This was not an agreement for the "performance of the whole work," in the sense in which that phrase is currently used in connection with building contracts. Under this agreement work might or might not have been ordered. Obligation was imposed only as to work specifically ordered at a particular time. Upon the ordinary building contract the builder undertakes to construct or repair a particular improvement. He is under obligation so