ILG ELECTRIC VENTILATING COMPANY v. CHARLES CONNER AND OTHERS

Minnesota Supreme Court1927-10-21No. No. 26,260

172 Minn. 424

Summary · law.co

Holding. The court reversed the trial court's judgment and remanded the case, holding that the plaintiff substantially complied with statutory notice requirements where the notice specified the claim amount and material nature, was served timely on the surety's agent, and the omission of the last-item date did not constitute a material defect under the controlling statute.

ILG Electric Ventilating Company supplied ventilating fans to contractors building the Michael Dowling School in Minneapolis and sought payment from the contractor's surety bond when the contractors failed to pay. The trial court dismissed the action, finding that the plaintiff had not served proper notice as required by statute. The key dispute centered on whether a letter mailed to the bonding company's local agent, which mentioned the amount owed and the nature of the materials but omitted the specific date when the last item was furnished, satisfied statutory notice requirements.

The appellate court applied the principle that remedial statutes should be construed liberally, requiring only substantial compliance rather than technical perfection. The court concluded that the missing date was not a material defect because the governing statute made that date legally irrelevant—the critical date for determining rights was the building's acceptance by public authorities, not when materials were last supplied. The court also found the notice was properly served because it reached the bonding company's authorized local agent in timely fashion, even though the statute did not prescribe a particular service method.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a notice on a contractor's bond satisfied statutory requirements despite omitting the date materials were last furnished
Proper construction of remedial statutes requiring substantial rather than strict compliance
Whether service on the bonding company's local agent constituted proper notice

Procedural posture

The trial court entered judgment for the bonding company after finding insufficient notice; the plaintiff appealed the denial of its motion for a new trial.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Holt, J.

Suit upon a public contractor’s bond for materials, ventilating fans, furnished by plaintiff to the contractors in the erection by them of the Michael Dowling School in Minneapolis. The court found that plaintiff failed to serve the notice required by law in order to maintain the action and directed judgment in favor of the bonding company. The appeal is from the order denying a new trial.

The only question presented is whether a sufficient notice was served on the company. The testimony was that the same sort of notice was served in the same manner on the contractors.

Section 9705, G. S. 1923, reads:

“No action shall be maintained on any such bond unless within ninety days after the completion of the contract and acceptance of the building by the proper public authorities, the plaintiff shall serve upon the principal and his sureties a written notice specifying the nature and amount of his claim and the date of furnishing the last item thereof, nor unless the action is begun within one year after the service of such notice.”

The notice on which plaintiff relies is a letter, mailed to the addressee therein on the date it is written, which reads:

“Minneapolis, Minn. November 26, 1924.

“Republic Casualty Co.,

“H. D. Brugger Co. Inc., Agents.

“818 2nd Ave. So., Minneapolis, Minn.

“Gentlemen:

“This is to advise that Conner Brothers have not settled their account with us amounting to $680.80 and we, therefore, will ,pow look to you for same because of the fact that Conner has been paid up in full by the Minneapolis School Board. The job in,question is the Michael Bowling School and material for which he owes us this money was for ventilating fans.

“Will you kindly advise us when we may expect payment on this and greatly oblige ?

“Very truly yours,

“Ilg Electric Ventilating Co., ,

“By H. S.. Nesbitt.”

It is to be noted that the above quoted section is part of a remedial statute to be liberally construed and only a substantial compliance exacted as a condition precedent to the maintenance of an action on the bond. It could not have been intended that the one who is forced to resort to the bond must first employ an attorney to draw and serve this notice so that no technical fault may be found therewith or else the remedy is not available. The only basis for a plausible claim that the notice does not comply with the statute quoted is that it does- not specify the date on which the last item was furnished. This omission occurs to us not to be a substantial defect, considering that as the statute now reads the date mentioned has no bearing upon the rights of the parties. The date determinative of rights and which sets the time running is the date of acceptance of the building for which the materials were furnished. The law in respect to this notice, R. L. 1905, § 4539, read:

“No action shall be maintained on any such bond unless within ninety days after performing the last item of work, or furnishing the last "item of skill, tools, machinery, or material, the plaintiff shall serve upon the principal and his sureties a written notice specifying the nature and amount of his claim and the, date of furnishing the last item thereof, nor unless the action is begun within one year after the cause of action accrues.”

Chapter 413, p. 501, L. 1909, amended this section so as to read as first quoted. It seems to us obvious that the words “and the date of furnishing the last item thereof” were inadvertently retained from the superseded statute, for they are meaningless in the present statute. There is authority for eliminating words without meaning or which tend to render a statute absurd. State ex rel. Patterson v. Bates, 96 Minn. 110, 104 N. W. 709, 113 A. S. R. 612; Paxton & Hershey I. C. & L. Co. v. Farmers & Merchants I. & L. Co. 45 Neb. 884, 64 N. W. 343, 29 L. R. A. 853, 50 A. S. R. 585; Leavitt v. Lovering, 64 N. H. 607, 15 A. 414, 1 L. R. A. 58.

We think the evidence is also conclusive that the notice was properly served; that is, the notice reached the bonding company in time. The building was accepted by the proper public authority September 28, 1924. The notice was mailed, at Minneapolis to the agent of the company there on November 26, 1924. It was produced at the trial by the attorney for the company. The law does not specify hoAV the notice should be served. It is enough that it reached the company in time. But it is insisted that H. D. Brugger Company, the addressee in the notice, Avas not the agent of the company so that service on him was not sufficient. The bond in suit shoAvs the respondent is a corporation of Pittsburgh, Pennsylvania, and that it Avas signed thus: “Republic Casualty Company, By H. D. Brugger, Attorney in fact, Attest: Chas. B. Coleman, Attorney in fact.” The testimony was undisputed that H. D. Brugger, doing business under the name of H. D. Brugger Company, was-the agent of respondent actively transacting its business in Minneapolis and had so done for a considerable time. Under the decision of James B. Clow & Sons v. A. W. Scott Co. 162 Minn. 501, 203 N. W. 410, there was proper service of the notice.

The order is iwersed and the case remanded with directions to the court below to modify the findings of fact and the conclusion of law as asked by plaintiff in its motion.