This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A different question arises where a bond is given in compliance with a statute which names the obligee and prescribes for whose benefit such bond is given and who may sue thereon. Under statutes allowing suit by the party aggrieved, such party may sue in his own name, without reference to the obligee.1 Where the bond is made payable to the state, the county may sue on a bond for the release of personalty seized for taxes,2 or on the bond of a defaulting tax-collector,3 since the county is in the first instance liable for the collection of taxes. So the beneficiaries of insurance policies may sue on a bond given by the insurer to the state,4 or the United States may sue on a sheriffs bond for the escape of a federal prisoner.5 Any person injured by breach of a liquor dealer's bond, payable to the state, may sue thereon.6 So claimants of property attached may sue on an indemnity bond given to the sheriff.7 Persons to whom an examination and inspection of ballots is referred on an election contest, may sue on contestant's bond; 8 an assignee in insolvency may sue in his official capacity on a bond given by the debtors on appeal from a decision adjudging them insolvent;9 officers entitled to costs may sue on a supersedeas bond given to the adversary party, conditioned to pay to him the "value of the use and occupation of the property" in litigation, and "to pay all costs";10 and a judgment creditor may sue in his own name on a supersedeas bond made payable by mistake to the clerk.11 If an officer, whose duty it is to collect taxes by making a levy on personalty in the first instance, does not do so, and thereby causes the tax to be collected out of realty, to the damage of a mortgagee thereof, such mortgagee has been allowed to maintain an action on the bond of such officer.12 A bond given by a county clerk is not intended for the benefit of the publishers of newspapers in which he is required to print official notices, and such publishers can not recover on such bond for the failure of such official to publish notices which he is required by law to publish.13 B was a member of a firm of which C and Y were partners. Judgment was rendered against the firm of B, C & Y, and execution was levied upon B's property. B sought to enjoin the collection of such judgment and in such injunction proceedings B gave an appeal bond upon which A was surety, the condition of which was that if a judgment denying such injunction should be affirmed, A would pay the judgment rendered against B, C & Y. The order denying the injunction was affirmed, and A paid such judgment, took an assignment thereof, and sought to enforce it by levying upon C's property. It was held that A could enforce such judgment by levying upon C's property, since A's act in becoming surety upon such appeal bond was not intended for C's benefit, although it conferred incidental and consequential benefit upon it, and accordingly C could not take advantage of the contract between A and B.14
10 In Wisconsin a promise to turn over a building to the city free of all claims and to give receipts for claims against such building does not enure to the benefit of a party who furnishes material. Electric Appliance Co. v. Guaranty Co., 110 Wis. 434, 53 L. R. A. 609, 85 N. W. 648. This rule applies where the owner is not to pay the contractor until he is satisfied that there are no mechanics* liens on the building. Campbell v. Carnegie, 98 Wis. DO. 73 N W. 572. To the same effect see. Holly Mfg. Co. v. Water Co., 48 Fed. 870; Parker v. Jeffrey. 26 Or. 186. 37 Pac. 712; Montgomery v. Rief. 15 Utah 495. 50 Pac. 623.
11 Parker v. Jeffrey, 26 Or. 186. 37 Pac. 712; Washburn v. Investment Co., 26 Or. 436, 36 Pac. 533. 38 Pac. 620.
12Jefferson v. Asch, 53 Minn. 446, 39 Am. St. Rep. 618, 25 L. R. A. 257, 55 N. W. 604. See Sec. 2307.
13 See Sec. 2407.
14 Forburger Stone Co. v. Lion Bonding & Surety Co., - Neb. - , 170 N. W. 897.
15 Forburger Stone Co. v. Lion Bonding & Surety Co., - Neb. - 170 N. W. 897.
18 Armour v. Western Const. Co.. 36 Wash. 529, 78 Pac. 1106,
1 United States. Washington Corporation v. Young, 23 U. S. (10 Wheat.) 106. 6 L. ed. 352; Equitable Surety Co. v. McMillan. 234 U. S. 448, 58 L. ed. 1304; Williams v. Simons, 70 Fed. 40, 16 C. C. A. 628; Union Guaranty & Trust Co. v. Robinson. 79 Fed. 420.
California. Hubert v. Mendheim, 64 Cal. 213, 30 Pac. 633.
Minnesota. St. Paul v. Butler, 30 Minn. 459, 16 N. W. 362; Morton v. Power, 33 Minn. 521, 24 N. W. 194; Koski v. Pakkala, 121 Minn. 450, 47 L. R. A. (N.S.) 183, 141 N. W. 793.
Ohio. Curry v. Homer, 62 O. S. 233, 56 N. E. 870.
Oregon. Crook County v. Bushnell, 15 Or. 169, 13 Pac. 886; Hume v. Kelly, 28 Or. 398, 43 Pac. 380.
Tennessee. Governor v. Allen, 27 Tenn. (8 Humph.) 176, 47 Am. Dec. 601.
2 Curry v. Gila County, 6 Ariz. 48, 63 Pac. 4 [citing, Mendocino County v. Lamar, 30 Cal. 628]; Sacramento County Supers, v. Bird, 31 Cal. 67; Mendocino County v. Morris, 32 Cal. 145.
3 Hume v. Kelly, 28 Or. 398, 43 Pac. 380.
4 Union Guaranty & Trust Co. v. Robinson, 79 Fed. 420.
5 State v. Hill, 60 Fed. 1005, 24 L. R. A. 170.
6 Koski v. Pakkala, 121 Minn. 450, 47 L. R. A. (N.S.) 183, 141 N. W. 793; McGuire v. Glass, 4 Tex. Civ. App. 78, 15 S. W. 127.
7 Williams v. Simons, 70 Fed. 40, 16 C. C. A. 628.
8Moede v. Haines, 66 Minn. 419, 69 N. W. 216 [denying the authority of, Dallas v. Savings Co., 158 Pa. St. 444, 27 Atl. 1055].
9 Court of Insolvency v. Meldon, 69 Vt. 510, 38 Atl. 167.
10Curry v. Homer. 62 O. S. 233, 56 N. E. 870.
11 Babcock v. Carter. 117 Ala. 575, 67 Am. St. Rep. 193, 23 So. 487.
12 Raynsford v. Phelps, 43 Mich. 342, 3ft Am. Rep. 189, 5 N. W. 403. (In this case the officer made a false return of "no goods.")