concurring.
The basis of the conclusion reached by the majority of the court in this case is, that the bond in question contains a dual obligation, and that the obligee named in the bond is, as to laborers and materialmen, a mere trustee. Under the settled law of this state, it is immaterial whether such a bond is executed in pursuance of a statute, or whether it is a mere common-law bond. *207Sample & Son v. Hale, 34 Neb. 220; Lyman v. City of Lincoln, 38 Neb. 794; Doll v. Crume, 41 Neb. 655; Korsmeyer Plumbing & Heating Co. v. McClay, 43 Neb. 649; Kaufmann v. Cooper, 46 Neb. 644; Fitzgerald v. McClay, 47 Neb. 816; King & Co. v. Murphy, 49 Neb. 670; Rohman v. Gaiser, 53 Neb. 474; Nye-Schneider-Fowler Co. v. Bridges, Hoye & Co., 98 Neb. 27.
Tbe bond contains two contracts, one with tbe owner, and the other for tbe benefit of those who supply labor or materials. “Tbe surety becomes bound for tbe performance of tbe work by tbe principal in accordance with tbe stipulations of tbe contract, and for the prompt payment of the sums due to all persons supplying labor and material in tbe prosecution of tbe work provided for in tbe contract.” Equitable Surety Co. v. United States, 234 U. S. 448, 34 Sup. Ct. Rep. 803. Tbe laborers and materialmen are tbe beneficiaries in tbe bond. A majority of tbe courts take tbe view that tbe conduct of tbe nominal obligee cannot affect their rights after tbe same are once fixed. 27 L. R. A. n. s. note on pages 596 et seq.
Tbe purpose of tbe bond would be defeated so far as tbe beneficiaries are concerned if, by some act or omission on tbe part of tbe obligee named therein, their rights should be destroyed. Their right of action, as said in Getchell & Martin Lumber & Mfg. Co. v. Peterson & Sampson, 124 Ia. 599, 615, “is not derived from, nor held under, tbe owner of tbe building, but is an independent right, of which they are not to be deprived save by their own act or default.”
Tbe following cases, in addition to tbe cases cited from this court, are in point upon tbe question whether any act or omission of a nominal obligee may release the surety as to laborers or materialmen for whose benefit such a provision is made in tbe contract. Texas & P. R. Co. v. Eason, 92 Fed. 553; United States Fidelity & Guaranty Co. v. Omaha Building & Construction Co., 116 Fed. 145; Griffith v. Rundle, 23 Wash. *208453; School District v. Livers, 147 Mo. 580; Kansas City v. Schroeder, 196 Mo. 281; Federal Union Surety Co. v. Commonwealth, 139 Ky. 92; United States Fidelity & Guaranty Co. v. American Blower Co., 41 Ind. App. 620. See, also, cases cited in note VII, 27 L. R. A. n. s. 581-595.
The surety company entered into this contract with full knowledge and notice of the laws of this state as declared by the decisions of this court, and should abide by its terms.