Beers v. Strimple

• Decision Date: 22 May 1893
• Citation: Beers v. Strimple, 22 S.W. 620, 116 Mo. 179 (Mo. 1893)
• Parties: BEERS et al. v. STRIMPLE et al.
• Court: Missouri Supreme Court

22 S.W. 620

116 Mo. 179

BEERS et al. v. STRIMPLE et al.

Supreme Court of Missouri, Division No. 1.

May 22, 1893.

PRINCIPAL AND SURETIES — BUILDING CONTRACT — CONSTRUCTION — ALTERATION WITHOUT KNOWLEDGE OF SURETIES — AUTHORITY OF SUPERINTENDENT — INCREASE OF EXPENSE — EFFECT.

1. In an action by the owner of an hotel against contractors and their sureties on a building contract for the erection of an addition to such hotel, it appeared that the contract described defendants as "S. and Son, principals, and W., H., and R., sureties, parties of the second part." All the agreements were expressed to be between parties of the first part and "the parties of the second part," except a provision which recited that "the last two payments to be paid on orders of said principal second parties, on the party of the first part," etc. Held that, in the absence of any statement in the contract that the sureties contracted as principals, they did not contract as such, and thereby waive their rights as sureties.

2. Such contract provided that the superintendent might make deviations from and alterations in the drawings and specifications without invalidating it, and, in case of any difference in the expense, an addition to or abatement from the contract price should be made, as determined by him; and that, in case of any such alteration dictated by the superintendent, the cost and expense thereof must be agreed on in writing, and signed by "said parties of the second part and superintendent," before the work is done or any allowance made therefor, "and, in case of any failure so to agree, the same shall be completed upon the original plan." Held, that the superintendent had no authority to make alterations without consulting the sureties.

3. Where, in such case, it appears that without the knowledge of the sureties the superintendent changed the depth of the basement and the depth of all the closets, thereby increasing the cost of plastering alone $221, and adding the expense of a bulkhead for sewer connection, and that he also changed the arrangement of the closets on the second floor, the sureties are released, and cannot be held by applying the maxim, de minimis non curat lex.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Action by Harriet Beers and husband, George S. Beers, against Joab Strimple, B. F. Strimple, August Wolf, Thomas F. Hayden, and John Reitz, to recover damages for the breach of a building contract executed by the Strimples as principals and the other defendants as sureties. From a judgment for plaintiffs, defendants Wolf, Hayden, and Reitz appeal. Reversed.

Seneca N. Taylor, for appellants. Chester H. Krum and M. B. Jonas, for respondents.

BLACK, C. J.

The plaintiffs entered into a contract with the defendants, whereby they agreed to furnish all the labor and materials, and build and complete an addition to an hotel, according to the plans, elevations, and specifications furnished by the superintending architect, for which the plaintiffs agreed to pay them the sum of $31,070, in installments as the work progressed. The defendants Strimple & Son proceeded with the work until nearly completed, and then abandoned it, leaving unpaid bills. The plaintiffs were obliged to employ others to complete the work, and to lay out money in the discharge of mechanics' liens created by the Strimples, and hence this suit. The Strimples made no defense. Wolf, Hayden, and Reitz defend on the ground that they were sureties for the Strimples, and that the plaintiffs and the Strimples altered and changed the terms of the contract without their knowledge or consent. The contract describes the defendants as "Joab Strimple & Son, principals, and A. Wolf, T. F. Hayden, and John Reitz, sureties, parties of the second part." The agreements throughout the contract are expressed to be by and between the parties of the first part and "the parties of the second part," until it speaks of the final payments, when it provides: "The last two payments to be paid on orders of said principal second parties, on the party of the first part, through orders of the superintendent." By agreement, the cause was heard by a referee, who found for the plaintiffs as against the Strimples, in the sum of $5,203.54; and, as to the affirmative defense, he found that the plaintiffs and the Strimples made, without the knowledge or consent of the other defendants, changes and alterations in the plans and specifications forming a part of the contract as follows: "First. The large sliding doors provided by the plans for the dining room were omitted, and a pair of smaller sliding doors inserted in the room on the second floor used for a parlor, the smaller doors being less costly than the doors omitted. Second. The closets in the rooms on the second floor were differently arranged, and the doors, as you enter from the old building on the 3d, 4th, and 5th floors, were changed, so as to face the opening from the old building, instead of being around on the north side, coming from the hall. Third. That by reason of the bottom of the basement being lower than the sewer for the new building, a bulkhead was put in the basement, to enable the plumber to connect with the sewer for said addition. Fourth. That flitch plates provided for the fifth story were omitted from that story, and used in the openings of the first story to form girders instead of lintels. Fifth. The closets in said addition were made six inches deeper than provided for by said plans. Sixth. The basement of said addition was made six inches deeper than provided for by said plans. From the evidence the referee is unable to determine what, if any, extra costs were added to the contract price by reason of the changes, additions, and alterations specified under divisions first, second, third, and fourth, and hence finds the fact to be that such changes, alterations, and additions were made without adding extra cost to said contract price. The referee finds that the changes, alterations, and additions named under divisions fifth and sixth added to the contract price for the construction of said addition the sum of two hundred and twenty-one and 61-100 dollars, which said sum was an extra for the material and labor in doing 633.18 square yards of plastering, at 35 cents per square yard, made necessary by such changes, alterations, and additions in and to...