American Surety Co. v. Fruin-Bambrick Const. Co.

• Citation: 166 S.W. 333,182 Mo. App. 667
• Decision Date: 07 April 1914
• Docket Number: No. 13,580.,13,580.
• Parties: AMERICAN SURETY CO. OF NEW YORK v. FRUIN-BAMBRICK CONST. CO.
• Court: Court of Appeal of Missouri (US)

166 S.W. 333

182 Mo. A. 667

AMERICAN SURETY CO. OF NEW YORK v. FRUIN-BAMBRICK CONST. CO.

No. 13,580.

St. Louis Court of Appeals. Missouri.

April 7, 1914.

Rehearing Denied April 24, 1914.

1. ASSUMPSIT, ACTION OF (§ 6) — GROUNDS — EXPRESS CONTRACT.

Plaintiff cannot recover in indebitatus assumpsit on the quantum meruit, where there is an express contract yet open that is not rescinded or executed; but, where such contract has been fully performed by him, and nothing remains except for defendant to pay money in consideration thereof, plaintiff need not declare specially on the contract, but may recover on an indebitatus assumpsit account as for the reasonable value; plaintiff in such case not repudiating the contract, but, under the common count, offering it in evidence to sustain his case and as proof of compliance with its terms.

2. ASSUMPSIT, ACTION OF (§ 25) — EVIDENCE — CONTRACT.

Defendant company in 1895 entered into a contract with a city for the construction of a street, and for its maintenance for 15 years after construction, and procured from plaintiff a surety bond conditioned for its faithful performance, and agreed to pay reasonable compensation therefor by way of a premium; such reasonable value being a premium amounting to $800 for the full term, payable $100 in advance for the first year and $50 in advance per annum thereafter, and paid such premiums to the year 1898, after which they were paid until 1906 by its assignees. Held, upon a count in indebitatus assumpsit as for a quantum meruit for premiums for 1907, 1908, and 1909, brought after plaintiff's performance of the surety contract, that it was competent to look to the contract between the parties to determine the time the premiums sued for were due.

3. ASSUMPSIT, ACTION OF (§ 26) — MEASURE OF DAMAGES — CONTRACT.

In such case the contract controls, and recovery must be ascertained according to its terms but for the reasonable value, not exceeding the contract price; and the contract alone affords sufficient prima facie evidence of the reasonable value.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by the American Surety Company of New York against the Fruin-Bambrick Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

S. Mayner Wallace and Barclay, Orthwein & Wallace, all of St. Louis, for appellant. Geo. E. Egger, of St. Louis, for respondent.

NORTONI, J.

This is a suit on an implied contract to reasonably compensate plaintiff for executing certain surety bonds at the instance of defendant and for its benefit. Plaintiff recovered, and defendant prosecutes the appeal.

The suit, in the first count, proceeds to recover the three last annual installments of the premium on the surety bonds in quantum meruit, and the matter for consideration presents the question as to whether or not it is competent to look to the contract between the parties to determine the time the several installments sued for were due. Defendant seems to concede the obligation to pay the premium in the first instance, but pleads the statute of limitations, on the theory that the debt is an entire one which accrued in August, 1895, when the surety bonds were executed, and that in this form of action the special contract between the parties, fixing its payment in annual installments, may not be reckoned with whatever.

It appears plaintiff is a surety company incorporated and doing business in the state of New York, while defendant is an incorporated company under the laws of Missouri, engaged in the business of constructing streets under contracts with municipalities. In 1895, defendant embarked in business in the city of New York, and entered into several contracts with that city for the construction and maintenance of a number of streets. Defendant entered into 22 separate contracts with the mayor and board of aldermen of the city of New York for the construction and maintenance of as many streets, and it became its duty thereunder to furnish a bond in connection with each contract, with satisfactory surety thereon, for the faithful discharge of such contracts. The contracts required not only the construction of the streets, but their maintenance as well by defendant for a period of 15 years after such construction was completed. Having entered into such contracts with the city of New York, defendant procured the services of plaintiff surety company in executing 22 separate bonds, conditioned for their faithful performance, and agreed to pay reasonable compensation to the surety company therefor by way of a premium which, it appears from the evidence, was payable in annual installments for the term. This suit proceeds in 22 separate counts for certain annual installments of premiums due and unpaid on each of the 22 separate bonds so executed by plaintiff at the instance and request of, and to the benefit of, defendant. However, by a stipulation in the record, it is provided that, as the same questions arise on all of the counts of the petition, the case made on the first one alone is to be considered, and the others should abide the result.

The surety bonds appear to have been executed on the 17th day of August, 1895, and it is said the reasonable value of the services of the surety with respect to the $10,000 bond mentioned in the first count of the petition was a premium amounting to $800 for the full term, payable $100 in advance for the first year, and $50 in advance per annum thereafter. All of the installments of the premium on this bond were paid, save the three last; that is to say, one installment of $50 due November 25, 1907, one installment of premium due November 25, 1908, and one installment of premium due November 25, 1909. The three installments last mentioned were not paid, and the cause of action declared upon in the first count of the petition is for $150 as the reasonable value for the services of the surety during the three last years prior to the expiration of the maintenance period for which it stood surety under defendant's contract with the city. Of course, if defendant paid the several installments of premium as they fell due from 1895 until 1906, no question under the statute of limitations could possibly arise, for such payments would toll the statute. But it is insisted by defendant that it made no payment of premium whatever after the year 1898. It appears that, although defendant, Fruin-Bambrick Construction Company, entered into the contracts in New York in 1895, and executed the bonds with plaintiff as surety thereon, at that time, in the year 1898, it sold its business to another company — that is, the Fruin-Bambrick Paving Company, a New York corporation — and withdrew entirely therefrom. Thereafter the New York corporation, the Fruin-Bambrick Paving Company, sold its business, including the same contracts, to the Barber Asphalt Company, and it is said all of the installments of premiums on the bonds...