Boppart v. Illinois Surety Company
| Decision Date | 21 February 1910 |
| Citation | 126 S.W. 768,140 Mo.App. 675 |
| Parties | J. A. BOPPART, Respondent, v. ILLINOIS SURETY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Hermann Brumback, Judge.
AFFIRMED.
Judgment affirmed.
Battle McArdle for appellant.
(1) A waiver presupposes knowledge of the thing to be waived. A party relying upon a waiver must prove that it was made with knowledge of all the facts by the party who thus releases his rights. In the absence of such knowledge there can be no waiver. Callies v. Modern Woodmen, 98 Mo.App. 521; Dyas v. Hanson, 14 Mo.App. 363; Thompson v. Ins Co., 169 Mo. 12; Hearsh v. Ins. Co., 130 Mo.App. 457; Riley v. Ins. Co., 117 Mo.App. 229; Burgess v. Ins. Co., 114 Mo.App. 169; McCollum v. Ins. Co., 61 Mo.App. 352; Fink v. Ins. Co., 66 Mo.App. 513; Dolan v. Ins. Co., 88 Mo.App. 666; Polk v. Assurance Co., 114 Mo.App. 514; Rudd v Ins. Co., 120 Mo.App. 7; Okey v. Ins. Co., 29 Mo.App. 105. (2) A surety may stand on the strict letter of his contract. If it is altered without his consent he is discharged. This rule applies to building contracts. A surety is a favorite of the law. If changes are made in plans and specifications, and work done according to such changes, and under conditions not prescribed by the contract, the surety is discharged. Burnes Estate v. Fidelity and Deposit Co., 96 Mo.App. 467; Lumber Co. v. Gates, 89 Mo.App. 201; Bagwell v. Surety Co., 102 Mo.App. 707; Eldridge v. Fuhr, 59 Mo.App. 45; Beers v Wolf, 116 Mo. 179; Evans v. Graden, 125 Mo. 72; Reissaus v. Whites, 128 Mo.App. 135; Martin v. Whites, 128 Mo.App. 117; School District v. Green, 134 Mo.App. 421. (3) An alteration of the contract consisting of an extension of time in which the building is to be completed, if made without the consent of the surety, will discharge it from liability. Johnson v. Bank, 173 Mo. 171; Judah v. Zimmerman, 22 Ind. 388.
G. W. Haverfield for respondent.
(1) When a surety, knowing the facts, does that which is inconsistent with its intention to insist upon a strict compliance with the conditions precedent of the contract, it is treated as having waived their performance, and the obligee may recover without proving performance. Burgess v. Ins. Co., 114 Mo.App. 180; Polk v. Assurance Co., 114 Mo.App. 518; Okey v. Ins. Co., 29 Mo.App. 111; Crowder v. Casualty Co., 115 Mo.App. 540; Stearns Law of Suretyship, p. 453; Surety Co. v. Pauly, 170 U.S. 133; Life Ins. Co. v. Surety Co., 34 F. Rep. 291. (2) Immaterial deviations in the work embraced in a building contract, although not made in accordance with the provisions of the contract, will not release the surety. When the contract itself contemplates its alteration, then it may be altered without affecting the liability of the surety. Martin v. White & Cox, 128 Mo.App. 123; Lumber Co. v. Gates, 89 Mo.App. 205; Fairbanks Co. v. Bond & T. Co., 97 Mo.App. 212. (3) Where the building contract provides for extension of time for completion beyond the date named, and the contractor fails to complete the work on account of the conditions named in the contract as grounds for extension, but does not make application for such extension in the manner provided, the mere passive consent of the owner will not amount to a contract for extended time, and will not release the surety. Stearns Law of Suretyship, p. 115; Burris v. Davis, 67 Mo.App. 214; Wing, etc., Co. v. U.S. etc., Co., 150 F. Rep. 675.
This is an action against the surety, alone, for the default of its principal. The bond is for the penal sum of two thousand dollars, 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 and Brother, Architects, by January 20, 1907. The plaintiff agreed to pay the contractor $ 3912, 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 employees, 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 claims 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 $ 3500 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 itemized statement of such claims: That the work performed by the contractor was not done according to the plans and specifications, stating the default in that respect, and that he was damaged in the sum of $ 100 thereby. That plaintiff paid for the hardware used in said building and that he did not receive any credit therefor in the payments he made as aforesaid.
The plaintiff pleads the clause in the bond whereby plaintiff should notify the defendant in writing of any act, omission or default on the part of the contractor which might involve a claim or loss for which defendant was responsible under the bond, within twenty-four hours after the occurrence of such default shall have come to his knowledge by registered letter as stated, but that defendant waived the giving of such notice, by defendant's agent, whereby defendant agreed to pay such loss, and further by the acceptance of the certificate for the balance due to the contractor on final settlement.
The defense is that the building had not been completed within the date fixed in the contract, but that by agreement between plaintiff and the contractor the time for its completion was extended without the consent of the surety; and that changes were made in the plans and specifications and work done accordingly, without the consent of the surety.
In March, 1907, the plaintiff was informed that there were unpaid bills for material furnished to the building and work done. There were some changes made in the specifications without the knowledge of the defendant, but most of them were made by the architect in the manner provided by the contract; the others were slight as we shall see hereafter.
On January 20th, the contractor not having completed the work on account of the conditions of the weather further time was given him...
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