Beers v. Wolf

• Decision Date: 22 May 1893
• Citation: 22 S.W. 620,116 Mo. 179
• Parties: Beers, et al., v. Wolf, et al., Appellants
• Court: Missouri Supreme Court

22 S.W. 620

116 Mo. 179

Beers, et al., v. Wolf, et al., Appellants

Supreme Court of Missouri, First Division

May 22, 1893

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Reversed and remanded.

Seneca N. Taylor for appellants.

(1) Wolf, Hayden and Reitz are sureties and are not principals on the contract in question. While a surety may waive his rights as surety, yet this was not done by the contract involved in this case. McMillan v. Parkell, 64 Mo. 286; Picot v. Signiago, 22 Mo. 593. (2) Where the instrument does not describe either of the makers as as "principal" or "surety" but contains joint promises on the part of both, evidence aliunde may be given showing that one of the makers was in fact surety for the other, and that the promisee knew this fact. In such case defenses peculiar to sureties obtain. Savings Ass'n v. Helmrich, 57 Mo. 100; Barron v. Cady, 40 Mich. 259; Carpenter v. King, 9 Met. 515; Harris v. Brooks, 21 Pick. 195; Ward v. Statit, 23 Ill. 409; Brandt on Suretyship, secs. 17-19. (3) The sureties' liability is dependent upon the identical contract being carried out, and any change therein without the consent of the surety, whether beneficial or injurious to his principal, discharges him. Miller v. Stewart, 9 Wheat. 702; Nofsinger v. Hartnet, 84 Mo. 552; Bauer v. Cabanne, 105 Mo. 118; Blair v. Ins Co., 10 Mo. 566; Morgan v. Martien, 32 Mo. 443; State ex rel. v. Boon, 44 Mo. 262; Farrer v Cramer, 5 Mo.App. 167; Gugerty v. Vieths, 14 Mo.App. 577; Warden v. Ryan, 37 Mo.App. 466; Ide v. Churchhill, 14 Ohio St. 383; Bartholl v. Dodier, 10 Ga. 236. (4) It cannot be contended successfully by the respondents that the additions and alterations were of such a trifling character as that the law will not regard them on the maxim de minimis non curat lex. It has never been held that a sum equal to $ 200 would fall within the maxim. Moreover, adding any substantial sum to the obligation of the surety has always been held to discharge the security. Picket v. Breckenridge, 22 Pick. 298; Cherry v. Stephens, 97 Mass. 83; Evans v. Fortman, 30 Mo. 449; Bank v. Armstrong, 62 Mo. 59; Bank v. Fricke, 75 Mo. 178.

Chester H. Krum and M. B. Jonas for respondent.

(1) The contract authorizes changes in plans of construction. See Cemetery Co. v. Cabane, 7 Md. 202; Building Ass'n v. Fitzmaurice, 7 Mo.App. 285. (2) The changes in the construction were not material, and hence did not avoid the contract. (3) It is not clear that the appellants, Wolf, Hayden and Reitz, are sureties. They are named with the contractors, for whom they say they only became sureties as "parties of the second part." Their obligation is conditioned for the faithful performance of a building contract.

OPINION

Black, P. J.

The plaintiff entered into a contract with the defendants, whereby they agreed to furnish all the labor and materials, and build and complete an addition to a hotel, according to the plans, elevations and specifications furnished by the superintending architect; for which the plaintiff 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 plaintiff was obliged to employ others to complete the work and to lay out money in the discharge of mechanic's 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 plaintiff and the Strimples altered and changed the terms of the contract without their knowledge or consent.

The contract describes the defendants as "Joab Strimples & 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 plaintiff as against the Strimples in the sum of $ 5,203.54; and, as to the affirmative defense, he found that the plaintiff 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 third, fourth and fifth 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 bulk-head 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 division 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 $ 221.61, which said sum was an extra for the material and labor in doing sixty-three and eighteen one hundredths square yards of plastering at thirty-five cents per square yard, made necessary by such changes alterations and additions in and to said new addition, not originally provided for by said plans."

As a matter of law the referee found that the sureties were discharged because of these changes and alterations. To this conclusion of law the plaintiff excepted and the exception was sustained, and the court gave judgment against all of the defendants for $ 4,431.

1. The first question is, did the appellants contract as principals, so as to waive their rights as sureties. One who is in reality a surety may contract as a principal. He may waive the rights which the law throws around a surety, for such a waiver has nothing in it offensive to the law; and the surety does waive such rights when he in terms contracts and agrees to be bound as principal. Picot v. Signiago, 22 Mo. 587; McMillan v. Parkell , 64 Mo. 286; Brandt on Suretyship, sec. 28. But in this case the appellants did not waive their rights as sureties. They are in the beginning of the contract described as sureties, and when we come to the agreements concerning the last two payments the distinction between principal and sureties is again shown; and there is no statement in the contract to the effect that they contract as principals. As they are described in the contract as sureties, it must appear from other parts thereof that they agreed to be bound as principals before it can be said that they waived any of their rights as sureties. The contract contains no statement to the effect that they bound themselves as principals, and they must have accorded to them all the rights of sureties.

2. It is contended on behalf of the plaintiff that the superintendent had the right to make changes in the plans and specifications without consulting the sureties. Whether he had such right or not must depend upon a proper construction of the contract. As there is a dispute as to the meaning of the contract, it may be stated here, that the contract of a surety must be construed like any other contract, that is to say, according to the intent of the parties. There should be no strained construction in...