Boppart v. Illinois Surety Co.

• Decision Date: 21 February 1910
• Citation: 140 Mo. App. 675,126 S.W. 768
• Parties: BOPPART v. ILLINOIS SURETY CO.
• Court: Missouri Court of Appeals

126 S.W. 768

140 Mo. App. 675

BOPPART v. ILLINOIS SURETY CO.

Kansas City Court of Appeals. Missouri.

February 21, 1910.

Rehearing Denied April 4, 1910.

1. PRINCIPAL AND SURETY (§ 129) — DISCHARGE OF SURETY — WAIVER.

While a waiver must be made with knowledge of all the facts by the party waiving it, the agent of a company which was surety on a construction contract by accepting the balance

of the contract price after the contractor had abandoned the work, and stating that the owner need not worry as the matter would be settled up, waived notice to the surety of the contractor's defaults, as required by the surety contract.

2. PRINCIPAL AND SURETY (§ 104) — DISCHARGE OF SURETY — SURETY ON BUILDING CONTRACT — EXTENSION OF TIME OF COMPLETION.

Since a provision of a building contract that, if the work was delayed for certain causes, the time fixed for completion should be extended for a period as fixed by the architects if a claim for extension was made to the architects within a certain time, was made for the owner's benefit, he waived it by himself agreeing with the contractor as to the time of extension, so that such extension did not discharge the contractor's surety.

3. PRINCIPAL AND SURETY (§ 100) — DISCHARGE OF SURETY — CHANGES IN OBLIGATION.

Technical or immaterial variations from the strict letter of the contract of a surety for hire will not discharge his obligation, a substantial compliance only being required, and, where a building contract provided for changes in the specifications to be made in a certain manner, that one or two unimportant changes were made therein which were not made as provided by the contract, one being paid for by the owner and the other consisting of two area ways around windows constructed by the contractor to prevent water running into them, would not discharge the contractor's surety, though made without its consent; it not destroying the identity of the contract.

Appeal from Circuit Court, Jackson County; Herman Brumback, Judge.

Action by J. A. Boppart against the Illinois Surety Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Battle McCardle, for appellant. G. W. Haverfield, for respondent.

BROADDUS, P. J.

This is an action against the surety alone for the default of its principal. The bond is for the penal sum of $2,000, conditioned for the performance by one G. A. Love of all the terms and conditions of a certain building contract entered into between plaintiff and said Love. By the terms of this contract, dated October 15, 1906, Love agreed to construct a two-story frame dwelling, furnish all material and labor, and to complete the same free of all mechanics' liens, according to plans and specifications prepared by A. Van Brunt & Bro., Architects, by January 20, 1907. The plaintiff agreed to pay the contractor $3,912 upon certificates furnished by the architects. There were various conditions in the contract, among which was that plaintiff should purchase the hardware to be used, and should have credit on the contract price for the same; that Love should use good material and keep the house in good repair for one year; "that said surety shall be notified in writing of any act, omission, or default on the part of said principal, or his, their, or its agents or employés, which may involve a claim or loss for which the said surety is or may be responsible hereunder, within twenty-four hours after the occurrence of such act, omission, or default shall have come to the knowledge of the owner, or his, its or their agents, officers, or representative," and that "said notification must be given by a United States registered letter mailed to said surety at its office in Chicago, Illinois"; that no alterations were to be made in the work except upon the written order of the architects, the amount to be paid to the owner or allowed by the contractor by virtue of such alterations to be stated in said order; that "should the contractor be delayed in the prosecution or completion of the work by the act, neglect, or default of the owner, of the architects, or any other contractor employed by the owner upon the work, or by any damages caused by fire, lightning, earthquake, cyclone, or other casualty for which the contractor is not responsible, * * * then the time herein fixed for the completion of the work shall be extended for a period equivalent to the time lost by reason of any or all of the causes aforesaid, which extended period shall be determined and fixed by the architects, but no such allowance be made unless a claim therefor is presented in writing to the architects within forty-eight hours of the occurrence of such delay;" and that the owner, in case any lien shall be established against the property which is chargeable to the contractor, shall have the right to retain out of any payment then due or thereafter to become due an amount sufficient to completely indemnify him against such lien or liens, and, should there be any such claim after all payments are made, the contractor shall refund to the owner all moneys that the latter may be compelled to pay in discharging any lien on said premises made obligatory in consequence of the contractor's default.

The plaintiff alleges that there was a breach of the contract in several particulars, viz.: That from time to time as the work progressed he paid to the contractor $3,500 of the contract price, but that the contractor abandoned his work before completion, "and failed and refused to complete the building free and clear of mechanics' liens and left many claims for material furnished for the building which were reduced to judgment and paid by plaintiff." The plaintiff then makes an...