Opinion of the Court.

are made without their knowledge or consent. Doll v. Crume, 41 Neb. 655, 59 N. W. 806; Kauffmann v. Cooper, 46 Neb. 644, 65 N. W. 796. We are therefore of the opinion that the second contention made is not sustained by the authorities.

The court found that estimates were made by the architect, in compliance with the provision of the contract, so far as he was able so to do. The first estimate was made upon the representations of the contractor, and was in excess of the 90 per cent. provision of the contract, but the architect was deceived by the representations of the contractor. From the general findings of the court, it seems reasonably clear that this provision of the contract was substantially complied with. It is true the testimony shows that when the building was finished there was not ten per cent. on hand for the contractor, but this was on account of the fact that the officers of the school board, for their own protection as well as that of the sureties, were compelled to take charge of the building on account of the failure of the contractor to perform his duty and pay for the material and labor direct. No doubt had this not been done the sureties would have probably been liable for an amount greatly in excess of the amount of the judgment in this case. What we have said in disposing of the second contention made will equally apply to the third contention.

Going to the fourth proposition, it is contended that the bond secured no right of action to the plaintiff for the reason that under the law no lien could attach to the building. We are clearly of the opinion that this position is not tenable. Had the bond in question only provided for security of payment of claims secured by liens upon the building, then perhaps there would have been some merit in this contention,

Crudup et al. v. Oklahoma Portland Cement Co.

for it seems to be conceded under the law that no lien could attach upon the building as security for the payment of the purchase price of material, labor, or otherwise; but this is not such a case. The bond in question, as we have seen, has a provision clearly contemplating security for the payment of claims such as that sued on in this action. Under this provision of the bond, quoted supra, security for the claim of the plaintiff was specially provided for, and the provision further contemplated that a right was given to proceed in the courts for the purpose of enforcing such security.

After a careful examination of the record, we find that no prejudicial error was committed affecting the substantial rights of the plaintiffs in error or causing a miscarriage of justice.

The judgment of the trial court is therefore affirmed.
By the Court: It is so ordered.

INDEX

INDEX

ABATEMENT AND REVIVAL-See Judgment," 8-10.

Disposition of Cause-Death of Party-Dismissal. The death of the de-

fendant, pending an appeal to the Supreme Court, in an action
to recover damages for libel, abates the action, and it cannot be
revived, and the appeal will be dismissed. Lockett v. Tucker...........
ABSTRACT QUESTIONS-See "Moot Questions."

ACCEPTANCE-See "Costs."

ACCIDENT INSURANCE-See "Insurance," 3.

ACCORD AND SATISFACTION--See "Appeal and Error," 30.

1. What Constitutes. Accord and satisfaction is a method of dis-
charging a contract, or settling a cause of action arising either
from a contract or tort, by substituting for such contract or cause
of action an agreement for the satisfaction thereof, and an execu-
tion of such substituted agreement. Gentry v. Fife.....

2. Proof-Question of Fact. The defense of accord and satisfaction
must not only be properly pleaded, but the evidence must show a
meeting of the minds on the new promise, and that it was made
and accepted with the purpose and intent that it should operate
as a discharge of the prior obligation, and the purpose and intent
is a question of fact for the court or jury to determine. Idem......
ACKNOWLEDGMENT:

2.

1. Notaries-"Public Officer"-Ministerial Act. A notary public is a
"public officer," and his act in taking an acknowledgment to a
deed or mortgage and certifying to the same is a ministerial
act, and not a judicial one. Clapp v. Miller...
Negligence of Notary-Liability. In taking acknowledgment it is
the duty of a notary public to exercise reasonable care and pru-
dence to ascertain the truthfulness of that to which he certifies.
and if he fails so to do he is liable to any one damaged, if his
negligent act is the proximate cause of the damage. Idem.....
Same-False Certificate-Pleading-Burden of Proof. A petition
which charges that a mortgage was a forgery and the certificate
of the notary thereto acknowledging the same was false and un-
true, states a cause of action against the notary, and if estab-
lished by the evidence, it then becomes the notary's duty to show
he used reasonable care and skill in certifying to the same. Idem.

3.

552

1

29

29

29

ADVERSE POSSESSION—See "Champerty and Maintenance.”
AFFIDAVITS-See "Attachment"; "Process."