Bartlett & Kling v. Illinois Surety Co.

• Decision Date: 17 February 1909
• Citation: 119 N.W. 729,142 Iowa 538
• Parties: BARTLETT & KLING, Appellees, v. THE ILLINOIS SURETY COMPANY, Appellant
• Court: Iowa Supreme Court

119 N.W. 729

142 Iowa 538

BARTLETT & KLING, Appellees, v. THE ILLINOIS SURETY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

February 17, 1909

REHEARING DENIED WEDNESDAY, MAY 12, 1909.

Appeal from Mahaska District Court.--HON. B. W. PRESTON, Judge.

ACTION at law upon a bond given by defendant to secure the performance of a contract made by one Glattfeld with plaintiff for the construction of certain brick and stone work about and upon what was known as the "Central Heating Station" for the State Agricultural College at Ames. Plaintiff claimed something like $ 3,000 as owing it because of the defaults and delinquencies of Glattfeld, and in a supplemental petition asked for work done after the bringing of the suit. Defendant set up a counterclaim for extra work done by Glattfeld, and averred that the original contract, plans and specifications had been orally changed without its consent and contrary to the terms of the original contract, thereby releasing it from liability. It also pleaded a release, due to the fact that plaintiff had not sued the principal, Glattfeld, within six months from the completion of the work, as it had agreed to do. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

John F. & W. R. Lacey, for appellant.

Crosby & Fordyce and John O. Malcolm, for appellees.

OPINION

DEEMER, J.

Plaintiffs are general contractors, and as such they undertook the erection and construction of what was to be known as the "Central Heating Station" for the State Agricultural College at Ames. They sublet the "brickwork, masonry and bricklaying" to one Glattfeld, the contract with him having been executed June 26, 1906. On July 20, 1906, the bond in suit was signed by Glattfeld as principal and the defendant as surety. It is for the penal sum of $ 3,000, and is conditioned as follows:

The condition of this obligation is such that, whereas the said principal has entered into two certain written contracts with said Bartlett & Kling, for the doing by said principal of taking down and reconstructing and completion of the brickwork and the setting of the partitions of construction of Macon County Infirmary, Macon, Missouri, under date of June 6, 1906, and brickwork, masonry and bricklaying including setting of stone trimmings for construction of Central Heating Station Building, city of Ames, Iowa, under date of June 25, 1906, now, if the said principal shall well and truly keep, do, fulfill, and perform each and all of the covenants, obligations, undertakings, conditions, and guaranties of said contracts by said principal to be kept, fulfilled or performed and at cost to said Bartlett & Kling as in said contract provided for, then this obligation to be void, otherwise to remain in full force and virtue.

The contract with reference to the work at Ames is very long and need not be set out in full. We shall refer to the material parts by setting out the substance thereof or by excerpts taken from the record. Glattfeld was named as the first party, and Bartlett & Kling the second, and it was promised, among other things, that:

Article 1. First party agrees to furnish all labor and material, and do and perform all the work required, for the full doing and completion of the brickwork, masonry, and brick laying, including setting of stone trimmings, for construction of Central Heating Station building in city of Ames, Iowa, all in full and strict accordance with the present plans and specifications, and their requirements, including all work and material of character and kind above mentioned, that is required by said plans and specifications, some provision therein to the contrary notwithstanding, together with all work and material specified under headings in specifications applicable to work herein contracted for, and all that is ordinarily done or furnished by contractors or workmen, in carrying on such work, together with and subject to all changes, alterations, additions, deductions and details, as herein provided for, and maintain same in place until fulfillment of this contract. All of which first party agrees to do and perform in good, true, perfect, prompt and workmanlike manner, and to satisfaction and acceptance of second party, the architect and owners of said building, and all at the cost to second party as herein provided. Where the word 'work' occurs in this contract it shall be held to mean and refer to labor, work and material the same as though each time repeated. The plans and specifications above referred to are same as are furnished by the architects, Proudfoot and Bird, and are on file with the college authorities.

Article 2. Second party shall have the right to furnish further details with written explanations, to illustrate and show the work to be done and furnished, and first party agrees to conform to the same as part of this contract, the same as though fully set out in original plans and specifications, but this provision shall not require second party to plan or lay out any of first party's work. Second party shall have the right to make any and all changes in the work called for by this contract, plans and specifications, and in the amount of, or character of, work to be furnished, that they may be directed or allowed to make, by said architect, or owners, without in any way making void or otherwise affecting the provisions or covenants of this contract. The order from second party for such changes, together with the price, as herein provided for, shall become a part of this contract, and be complied with by both parties the same as though fully set out in original plans, specifications and contract, and such changes, the order for same, nor agreed value of the changes, if agreed on, shall in no manner, relieve or release the sureties on any bond given to guarantee this contract, but becoming a part of this contract are covered by said bond. The value of and agreed cost to second party for the work furnished, in accordance with this provision, shall be in proportion to this contract price for the work, herein contracted for, unless the parties agree in writing as to the value of such changes, which they are authorized to do, in which case all interested parties shall be bound thereby. But first party agrees to make no alterations in the work contracted for, or shown or described by the drawings and specifications, except upon the written order of second party, and the production, by first party, of such written order, calling for work not already covered by this contract, shall be a condition precedent to first party's right of recovery for any work or material claimed as extras. This provision for changes shall not be used so as to decrease by more than one-half the total amount of the work now contemplated by this contract. Should first party for any reason not covered by these provisions furnish work, labor or material of a poor or less expensive grade or kind, or of less amount or value, than is herein contracted for, and if same is accepted and allowed to remain, there shall be deducted from the cost to second party, and from the amount otherwise to be paid to first party, such an amount as the work so supplied is worth to furnish, or should have cost, less than the work herein contracted for. It is agreed that no verbal order, objection, claim, or notice by either party to the other shall be of effect or binding, and no evidence of such order, objection, claim or notice shall ever be introduced in any suit in law or equity wherein these parties are interested, both parties agreeing to execute and deliver in writing all communications from them by which the other party is to be charged, notified, or affected, and when same are given verbally they shall be held as not material or binding, and none of the provisions of this contract, plans or specifications, shall be held to be waived, or interpreted, by second party, by reason of any act whatsoever, or in any manner, other than by an express waiver, or definitely agreed interpretation thereof in writing, signed and sealed by second party, and it is agreed that no evidence shall be introduced against second party of any other waiver or interpretation. All work done or furnished by first party, and chargeable to second party, on said building, shall be held to have been done under this contract.

It was also provided that it should be no excuse to first party, for failure to proceed as agreed, that some part of his work was delayed by second party, unless the same actually prevented him from doing and furnishing the particular work required. It was also provided that if the first party should fail to prosecute or carry on his work with promptness, or as the contract called for, the second party should be at liberty, if it so elected upon written notice, to make necessary arrangements and place necessary orders and provide such labor and work as the contract called for, or that if first party failed to give bond, or in any other respect failed to meet the requirements of the contract, the second party was at liberty to take possession for the purpose of completing all or any part of the work, and in either case the first party agreed to pay second party, as shown by itemized bills rendered, the cost to them of furnishing the work and carrying out the contract. It was also provided that:

Should the second party discontinue the erection of said building on account of the owners or their agents failing to comply with their contract with second party or for any other cause not the fault of second party, then first party shall, upon written order, discontinue work for such a time as he may be required to by such cause, and proceed again at such time as shall be ordered...