Bell v. Paul

• Decision Date: 21 September 1892
• Citation: 52 N.W. 1110,35 Neb. 240
• Parties: BELL ET AL. v. PAUL.
• Court: Nebraska Supreme Court

35 Neb. 240

52 N.W. 1110

BELL ET AL.

v.PAUL.

Supreme Court of Nebraska.

Sept. 21, 1892.

Syllabus by the Court.

1. A contractor entered into a written agreement with the owner to furnish all materials, and erect for him a building in accordance with certain plans and specifications, and deliver the same free from all liens for labor or material; and the contract further provided that the contractor was to receive therefor a stipulated sum, payable as the work progressed, on the estimates of the architect, less 15 per cent., which was to be retained by the owner until the expiration of 90 days from the completion of the work, and then was payable only in the event that there were no liens upon the property for labor or materials supplied through the contractor. A bond was given by the contractor, with sureties, to complete the building according to the contract, and turn the same over to the owner discharged of all liens. Payments were made to the contractor without the consent of the sureties, during the progress of the work, without estimates of the architect, and in excess of 85 per cent. of the contract price. In an action on the bond, it was held that the sureties were discharged from liability.

2. Held, that the tenth instruction to the jury did not correctly state the rule of damages in an action upon the bond.

Error to district court, Douglas county; DOANE, Judge.

Action on a building contract bond by George P. Paul against Charles Norling and H. W. Reynolds as principals, and John T. Bell and Ed. L. Howe as sureties. Judgment for plaintiff, and the sureties bring error. Reversed.Kennedy & Learned, for plaintiffs in error.

Cavanaugh, Atwell & Thomas and Mahoney, Minahan & Smyth, for defendant in error.

NORVAL, J.

This is an action by George P. Paul against Norling & Reynolds as principals, and John T. Bell and Ed. L. Howe as sureties, on a certain building contract bond. The trial resulted in a verdict in favor of the plaintiff below in the sum of $1,418.86. A motion for a new trial having been filed by the defendants, the plaintiff filed a remittitur for $122.36; whereupon the court overruled the motion for a new trial, and rendered judgment in plaintiff's favor for the sum assessed by the jury, less the amount of said remittitur. The sureties bring the cause into this court for review by petition in error. A brief statement of the facts will assist in a proper understanding of the questions presented. On the 30th day of April, 1887, Norling & Reynolds, contractors and builders, entered into a written contract with George P. Paul, by which they agreed to furnish all materials and perform all the labor necessary to build, furnish, and complete, in good first-class and workmanlike manner, for said Paul, in the city of Omaha, to his complete satisfaction, a frame dwelling, plumbing and heating excepted. The material was to be furnished and the labor performed under the supervision and direction of George L. Fisher, architect, and in accordance with the plans and specifications prepared by him. The contractors were to receive the sum of $3,465, which was payable as the work progressed, on the estimates of the architect, which were to be based on the value of the work performed and material furnished, and the amount of each estimate was to be paid, less 15 per cent., which was to be retained until the expiration of 90 days from the completion of the work, and its acceptance by the architect and owner; and it was then to be payable only in the event that there were no liens upon the property for labor or materials supplied through the contractors. It was also stipulated in the contract that should Norling & Reynolds, at any time during the progress of the work, refuse or neglect to supply sufficient materials or workmen, or cause any unreasonable suspension or neglect of the work, or fail or refuse to comply with any of their agreements in said contract contained, then said Paul was to have the right and power to enter upon and take possession of said premises, and provide materials and workmen sufficient to finish the work, after 48 hours of notice in writing. The expense of said notice and the costs of finishing the work were to be deducted from the contract price. It was further provided that the contractors should give a bond in the sum of $1,200 for the faithful performance of the contract, and to complete the work at time specified, and turn over the building free from all incumbrances or liens for labor or material. On the 3d day of May, 1887, the bond in suit was executed, which contained the following condition: “Now, if said Norling & Reynolds furnish all material and perform all labor in connection with said building as per said plans and specifications and contract, and turn over said building free from liens for labor or materials furnished through said Norling & Reynolds, then these presents to be void; otherwise to be of full force and effect.” Work was commenced under the contract in the month of May, and on the...