ON PETITION EOR RE-HEARING.
Hoyt, J.— -In the petition for re-hearing filed by respondent our attention is called to the fact that there was no demurrer to the complaint, filed in the court below, and that for that reason our direction as to the disposition of the cause was incorrect. That the complaint did not state facts sufficient to constitute a cause of action was urged as one of the grounds why the judgment should not be allowed to stand, and under our statute we were called upon to decide that question, even although it had not been raised in the court below. The object of the direction was to enable the respondent to file an amended complaint. It would have been better to have directed simply that the cause be remanded for further proceedings in accordance with the opinion, and to that extent the former opinion will be modified.
Respondent, in his petition, again urges with much force that the appellants were estopped by the recitals in the bond from the defense which they sought to make. We have carefully examined the question, and while we fully agree with the argument to the effect that the principal and sureties were bound by the recitals in the bond, we are unable to hold that such recitals can have force in favor of one who at the time of the execution of the bond was *433not a party thereto, or in any manner interested in the subject matter thereof. The fact that he afterwards became interested in the subject matter of the bond would not, under the circumstances of this case, entitle him to the benefits of the recitals therein.
In addition to the authorities cited upon the argument, some additional ones were called to our attention, and are cited in the petition for re-hearing, and confidently relied upon for the purpose of establishing the contention of respondent that the bond could be enforced by one who had furnished material, although he was in no manner a party to, or interested in, the subject matter of the bond at the time of its execution. Two of these cases were decided by the supreme court of Nebraska, one of them being Sample v. Hale, 34 Neb. 220 (51 N. W. 837), and the other Lyman v. Lincoln, 38 Neb. 794 (57 N. W. 531), and they clearly sustain the contention of respondent.
But we are unable to give our assent to the doctrine therein announced. The bond in question not having been required by the statute could derive no force therefrom, and we cannot hold that the recitals of a common law bond could have force excepting in favor of the parties interested therein at the time of its execution, or their assigns. That such recitals could be enforced in favor of the obligees in the bond may be conceded, for it was for their benefit that they were inserted, but such insertion was not for the benefit of every stranger who might thereafter voluntarily bring himself within the terms of such recitals without the consent of the parties to the bond. \
The Nebraska cases are unsatisfactory to us for the reason that- the doctrine announced seems to be an innovation upon well settled general rules as to the construction of contracts, and because the opinions tend to show either that the court did not fully appreciate the question which they were called upon to decide, or did not understand the effect *434of the cases relied upon and cited as authority for the decision. The opinion in the case of Sample v. Hale seems to be largely founded upon the case of Knapp v. Swaney, 56 Mich. 345 (23 N. W. 162), which is cited and commented upon as though the question presented to the supreme court of Michigan in that case was the’same as the one in the case at bar, while an examination will show that the question there presented was an entirely different one. In that case the sole question decided was as to whether or not it was within the power of the board of county commissioners to insert a clause in the contract that all claims should be paid before the county should be called upon to pay the contractor. All that was decided in that case was, that such a provision in the contract was not ultra vires, and there is not even an intimation therein that it could have any force excepting in favor of the parties to the contract.
The examination which we have made of the questions argued in the petition for a re-hearing has but confirmed the views expressed in our former opinion. The petition, therefore, must be denied.
Anders and Stiles, JJ., concur.