The opinion of the court was delivered by
Porter, J.:The defendant executed its bond as surety for the use of all persons in whose favor liens might accrue on account of labor or material furnished in the erection of a mill and elevator building. The plaintiff sued to recover a balance claimed to be due for material furnished. The case was tried upon an agreed statement of facts, and judgment was rendered for plaintiff, from which the defendant appeals.
The defendant excepts to three items in plaintiff’s account which aggregate $1,148.82, and which were for cash paid by plaintiff to the contractor. The correctness of plaintiff’s account otherwise is not disputed. The controversy over the three cash items arises in this way: The plaintiff furnished the contractor cement in sacks under a contract which provided that the purchaser was to pay fog sacks on the same terms as for cement, and on receipt of the empty sacks in good condition the plaintiff was to repurchase them at ten cents each. In *194order to obtain the discount allowed for cash, the contractor paid the purchase price of the cement when it was delivered, and the discount was figured upon the full amount of the purchase price, which, of course, included the sacks. On three separate occasions he returned sacks after the cement had been used, and the plaintiff paid him in cash the refund agreed upon when the cement was purchased. Because the bond expressly provided that the surety merely guaranteed to pay claims for which the party furnishing labor or material would otherwise have been entitled to file a lien upon the building, it is contended by thé defendant that in fixing the amount of its liability the court erroneously allowed these cash items for which plaintiff would not in any event have been entitled to a lien. There is not the slightest merit in this contention. If no surety bond had been given, the plaintiff would have been entitled to file a lien for the cost of the cement furnished to the contractor, and that is all that is included in the items of which defendant complains. In order to deliver the cement for convenient use, sacks were necessary as containers; these were furnished temporarily by the plaintiff under a contract by which the purchaser was charged with the sacks, and upon their return, a fixed price for them was to be refunded to him in cash. The whole question involves a mere matter of accounting. It is obvious that the contractor, having paid for the sacks in the first place, was entitled to receive the cash for them when they were returned, all of which was no concern of the surety company.
(Filed July 5, 1919.)The judgment is affirmed.