Backus v. Archer

• Decision Date: 30 June 1896
• Citation: 67 N.W. 913,109 Mich. 666
• Court: Michigan Supreme Court
• Parties: BACKUS v. ARCHER ET AL.

67 N.W. 913

109 Mich. 666

BACKUS v. ARCHER ET AL.

Supreme Court of Michigan

June 30, 1896

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Action by Albert P. Backus against John Archer and Charles P Collins on a contractor's bond. From a judgment in favor of defendants, plaintiff brings error. Affirmed.

Gray &amp Gray, for appellant.

Charles Flowers, for appellees.

HOOKER J.

The defendants executed a bond, as sureties, with and for one Margaret Depew, their principal, for the faithful performance by her of a building contract, and this action was brought upon the bond. Defendants were successful in their defense and the plaintiff has appealed.

The contract bound Margaret Depew to furnish materials and to erect a dwelling for the plaintiff on or before December 1 1892, in accordance with the plans and specifications and drawings made by George E. Depew (her husband), the architect of the building, subject to his supervision and entire approval. In consideration therefor she was to be paid by the plaintiff $3,648, at times therein specified as the work progressed. The contract provided that if said work should not be completed on the 1st day of December, 1892, plaintiff might, at his option, employ others to furnish materials and do the whole or any part of the work undone, and charge the cost to Margaret Depew, or leave the completion to her; and, if not completed on December 1, 1892 then she should pay to the plaintiff, as liquidated damages for non-performance of the contract, the sum of $1.50 per day until completed. Margaret Depew died a short time after December 1, 1892, at which date the building was not completed. The work was abandoned by Depew. It is conceded that at the time work was stopped upon the building the plaintiff had paid considerably more money than was due by the terms of the contract. The parties disagree about the amount; one claiming that the contract price was paid within $100, or thereabouts, and the other contending that it was at most between $400 and $500, but admitting that it was between $100 and $200. This being in contravention of the terms of the contract, released the sureties, pro tanto at least. Did it release them from all liability? In Brant on Suretyship (section 397) it is said: "A surety for the completion of work to be performed by the principal, where, by the terms of the contract, the principal is to be paid by installments, is discharged if the principal is paid faster than the contract provides. The surety is thereby deprived of the inducement which the principal would have to perform the contract in due time, *** and it is no answer to say that it is for the advantage of the surety, or that he has sustained no prejudice." Warre v. Calvert, 7 Adol. & E. 143; Calvert v. Dock Co., 2 Keen, 644. In the latter case the court said of a premature payment: "What the company did was perhaps calculated to make it easier for Streather to complete the work if he acted with prudence and good faith, but it also took away that particular sort of pressure which the contract was intended to be applied to him." The question was again fully discussed, and the doctrine of Calvert v. Dock Co. affirmed, in Navigation Co. v. Rolt, 95 E. C. L. 550. The American authorities are in harmony with the foregoing English cases. Clagett v. Salmon, 5 Gill & J. 314; Barnes v. Barrow, 61 N.Y. 39; Simonson v. Grant, 36 Minn. 439, 31 N.W. 861; Bragg v. Shain, 49 Cal. 135; Ryan v. Morton, 65 Tex. 258; Taylor v. Jeter, 23 Mo....