Brandrup v. Brazier

• Decision Date: 15 July 1910
• Citation: 127 N.W. 424,111 Minn. 376
• Parties: BRANDRUP v. BRAZIER et al.
• Court: Minnesota Supreme Court

111 Minn. 376

127 N.W. 424

BRANDRUP

v.BRAZIER et al.

Supreme Court of Minnesota.

July 15, 1910.

Appeal from District Court, Blue Earth County; A. R. Pfau, Judge.

Action by Jean R. Brandrup against Charles G. Brazier and another. Judgment for plaintiff, and the Empire State Surety Company appeals. Amended and affirmed.

Syllabus by the Court

Defendant appellant, a surety company, became surety upon a bond guaranteeing faithful performance of a building contract. Upon application for the bond the contract price was given as $6,900. The verbal understanding of the parties was then $7,500. Subsequently, but without intent to defraud, a written contract was entered into for $6,900, with an oral agreement for $600 additional. Held, the evidence justified a finding that the contractor breached the contract.

The payments made the contractor being within the amounts agreed to be paid during construction, it was immaterial that such amounts were paid without the written order of the architect.

The value of the extra work being duly credited, no prejudice resulted to the surety because the extra work and its price were not agreed upon in writing.

The plaintiff could recover for liens discharged by payments made after commencement of this action and before the trial.

A surety company, which engages for hire in the business of issuing guaranty bonds, is held to a stricter liability than the ordinary surety.

The written contract bound the parties to it; but plaintiff, having before the execution of the bond or contract agreed to pay more than the amount stated in the bond, cannot, as against the surety company, enhance his damages by claiming the price fixed by the written contract subsequently made. In finding the amount for which the surety is liable, the contract price must be held to be the amount actually agreed upon, to wit, $7,500. Boutelle & Chase and Arthur M. Higgins, for appellant.

Benjamin Taylor, for respondent.

O'BRIEN, J.

Plaintiff received bids for the remodeling of a building. Defendant Brazier proposed to perform the contract for $6,900. The other bids received were much higher. Plaintiff and his architect considered the bid a very low one, and suggested to Brazier that he had made a mistake, and insisted that he go over the plans again. The day following Brazier reported that he had made a mistake of $1,000. Plaintiff testified: ‘He said he could do it all right for $6,900, and then I said that if he did, and he did the work in good shape, and got it done on time, November 1st, I think it was, I said I would give him $600. I said that I would make him a present of $600. It was left that way.’ The defendant Brazier testified that, after the conversation with reference to the mistake, the plaintiff turned to him and said: “You say, if it had only been a difference of $300 or $400, you would not have said anything about it. Now, if I would give you $7,500, would you do it?' and I said I would. ‘Well,’ Mr. Brandrup said, ‘I will give you $7,500.’ Then he said, ‘You had better be seeing after a bond,’ and I told him I would. Nothing more was said then, and I left the office.' Subsequently the plaintiff and defendant went together to the agent of the defendant surety company for the purpose of procuring a bond guaranteeing the faithful performance by defendant of the contract. The contract price was stated to be $6,900, and the bond executed in the penal sum of $2,000. After making the application for the bond, the plaintiff and Brazier went to the architect's office and found prepared for signature the contract, in which the price was stated at $7,500, and thereupon that figure was erased, and $6,900 substituted. The architect testified: ‘The day the contract was drawn up Brandrup appeared and said that they had satisfactory advice on everything, and that I should go ahead and draw up the contract for $7,500, which I did then, and then in the afternoon Brandrup and Brazier appeared, and Brazier called Brandrup's attention to the difference in his bid and the price stated in the contract, and I was told to change it, which I did. I erased the $7,500, and substituted the original figures, $6,900. Then Brandrup stated that he would like very much to have Brazier do this work, and he told him if he did this work, and got it finished on time, and got it finished without any trouble to him, that he would comply with an offer that Brandrup had made, which was this, and I heard Brazier say the same, that was this: That Brandrup would draw up this contract with him; then he would do all the extra work that there was to do at cost, without any profit to himself; that is, he explained it this way: He says, ‘Now if you want to make any changes, we will send to the mill company and get figures, and whatever that mill bill is, if you approve of it, that will be the cost of the material, and the labor will be according to the pay roll, without any profit to me.’ And for this consideration Brazier was to get $600. That is the conversation and promise that took place before the contract was signed, and it was repeated after the contract was signed, that whatever extra work was done, whatever it might be, was to be done in that way, and then Brandrup started out after the contract was signed, and Brazier stayed there, and after Brandrup was gone I gave Brazier quite a severe talking to for entering into any such an agreement.' This action was brought by plaintiff to recover upon the bond; it being claimed that Brazier had defaulted in the performance of his contract. The court found in favor of the plaintiff, directing judgment against both defendants for the sum of $1,702.84, for which amount, with interest and costs, judgment was subsequently entered. Defendant...