Brennan v. Clark

• Decision Date: 29 April 1890
• Citation: 45 N.W. 472,29 Neb. 385
• Parties: J. E. BRENNAN ET AL. v. W. F. CLARK
• Court: Nebraska Supreme Court

45 N.W. 472

29 Neb. 385

J. E. BRENNAN ET AL. v. W. F. CLARK

Supreme Court of Nebraska

April 29, 1890

ERROR to the district court for Douglas county. Tried below before DOANE, J.

REVERSED AND REMANDED.

F. A Brogan, M. V. Gannon, and J. L. Kennedy, for plaintiffs in error:

The sum fixed was a penalty (1) because the damages could be easily ascertained (1 Sutherland, Damages, 508; 2 Greenleaf, Ev [14th Ed.], 267; Wilcus v. Kling, 87 Ill. 107; Noyes v. Phillips, 60 N.Y. 408; Dullaghan v Fitch, 42 Wis. 679; Watts v. Camors, 115 U.S. 353; Lansing v. Dodd, 45 N.J.L. 525; Shreve v. Brereton, 51 Pa. 175; Farrar v. Beeman, 63 Tex. 175; Scofield v. Tompkins, 95 Ill. 190; Savannah & C. R. Co. v. Callahan, 56 Ga. 331); (2) because the agreement consisted of several parts--required the construction of four different houses (1 Sutherland, 524-5; Cheddeck v. Marsh, 21 N.J.L. 463; Lansing v. Dodd, supra; Higgins v. Weld, 14 Gray [Mass.], 165; Kemble v. Farren, 6 Bingham [Eng.], 141; In re Newman, 4 Ch. D., 724; Tayloe v. Sandiford, 7 Wheat. [U.S.], 13; Hammer v. Brandenbush, 31 Mo. 49; Goldsborough v. Baker, 3 Cranch [U. S. C. C.], 48; Nash v. Hermosilla, 9 Cal. 584; Halleck v. Slater, 9 Iowa 599; Brown v. Bellows, 4 Pick. [Mass.], 178; Trowler v. Elder, 77 Ill. 452; Niver v. Rassman, 18 Barb. [N. Y.], 50); (3) because from the terms of the contract it was evidently so intended by the parties. Plaintiffs in error were released from liability as sureties, because of the non-observance of the provisions of the contract. (U.S. v. Tillotson, 1 Paine, [U. S. C. C.] 305; Simonson v. Thori, 31 N.W. [Minn.], 861; Brandt, Sureties, secs. 345, 347, 361, 370; Parsons, Contracts, ch. VII, note; Miller v. Stewart, 9 Wheat. [U.S.], 680; Mayhew v. Boyd, 5 Md., 102; Bringham v. Wentworth, 11 Cush. [Mass.], 123; Paine v. Jones, 76 N.Y. 274; Evans v. Lawton, 34 F. [Mo.], 233; Atlanta Nat. Bank v. Douglas, 51 Ga. 205; Bacon v. Chesney, 1 Starkie [Eng.], 192; Hawkins v. Humble, 5 Coldwell [Tenn.], 531; Ryan v. Trustees of Shawneetown, 14 Ill. 20; Watriss v. Pierce, 32 N. H., 560; Judah v. Zimmerman, 22 Ind. 388; Bragg v. Shain, 49 Cal. 131; Dundas v. Sterling, 4 Pa. 73; F. & M. Bank v. Hathaway, 36 Vt. 539; Vose v. Florida R. Co., 50 N.Y. 369; Lee v. Highland Bank, 2 Sandf. [N. Y.], 311; U.S. v. Admins. of Hillegas, 3 Wash. [C. C.], 70; Weir Plow Company v. Walmsley, 110 Ind. 242; Taylor v. Johnson, 17 Ga. 521.) The reserve portion of the contract price is to be construed as a security. (Dullaghan v. Fitch, 42 Wis. 679).

G. W. Ambrose, and V. O. Strickler, contra:

The law permits parties in their agreements to fix their own terms, conditions, and prices, and the amount estimated by themselves, with interest thereon, is the rule of damages. (Sedgwick, Measure of Damages [8th Ed.], 236; Welch v. McDonald, 8 S.E. [Va.], 711; Doolittle v. McCullough, 12 Ohio St. 365; Mansfield v. R. Co., 102 N.Y. 205.) Where the measure of relief is furnished by the contract, only its violation need be proved. (Sedgwick, 272; Adams Express Co. v. Egbert, 36 Pa. 360.) A definite sum fixed by the parties constitutes liquidated damages. (Sedgwick, 490; Smith v. Whitaker, 23 Ill. 367; Bingham v. Richardson, 1 Winston's Law [N. Car.], 215.) The objection of payment by Clark to defendants in error in an unauthorized manner was not raised below and cannot be set up here. Nothing in the contract obliged Clark to see to the distribution of the money.

OPINION

MAXWELL, J.

This action was brought in the district court of Douglas county by the defendant in error against the plaintiffs in error as sureties on a bond given by J. N. Bennett and Chas. R. Boehme as contractors for the erection of certain buildings in the city of Omaha.

On the trial of the cause the jury returned a verdict in favor of the defendant in error for the sum of $ 3,141, upon which judgment was rendered.

It is alleged in the petition that in the fall of 1886, Bennett & Boehme entered into a contract with Clark to erect for him "a block of four brick buildings on land owned by him, known as part of sublot 11 in block 3, Capital addition to Omaha," and for that purpose employed one Sidney Smith as an architect to prepare the necessary plans and specifications for the erection of said buildings; that "in said contract of agreement it was stipulated by the party of the first part, the plaintiff, that, in consideration of the foregoing covenants and agreements entered into by the parties of the second part, that he, the party of the first part, agreed with the party of the second part, and said party of the second part performing the covenants and agreements on their part, that the party of the first part would pay, or cause to be paid, unto the said party of the second part for erecting and completing all work in said buildings, except mantels and furnaces, the sum of eleven thousand nine hundred and twenty-eight dollars, the same to be paid by installments as the work progressed, less the sum of fifteen per cent, which sum was to be retained by the said plaintiff until the final completion and acceptance of the same; Provided, however, All bills for material and labor on such block of buildings has been paid for and of all work secured from liens; And further provided, That in each of said cases a certificate should be obtained, signed by the said architect or superintendent. * * * It was further agreed that the work done and material furnished should be to the entire satisfaction of Sidney Smith, architect, who by the terms of said contract and agreement was declared to be the superintendent of said works."

The defects alleged in the petition are as follows:

"Plaintiff has expended in the partial completion of said building so left as aforesaid uncompleted by said defendant the sum of $ 63.80. There is still left work unfinished which will cost and be reasonably worth the sum of $ 500.

"The plaintiff has paid the said defendants Boehme & Bennett the sum of

Cash

$ 10581 00

Has paid for glass and glazing

2 25

For fitting keys in the doors of said houses

1 50

Fixing locks

75

Bolt on front door

1 50

Sand for area of walls

8 10

Three iron bolts

1 60

Carpenter work

9 00

Order to Frank Newland

6 60

For labor

5 45

For brick to finish area walls

13 65

For bricklayers

6 00

And that there was a coat of stain work left off

the entire building, not including the sub-

basement, 1,792 yards, at 8 cents a yard,

which sum would be reasonably worth the

amount of

$ 143 36

There was left off from the entire sub-basement

painting, 152 yards, which would reasonably

be worth the sum of

53 20

Also the fittings of the sash of the windows and

door casings, the labor of which consumed six

days, at $ 3 per diem, which reasonably would

be worth

18 00

The material therefor was reasonably worth

3 50

Making a total of

$ 10859 36"

And the liens claimed against the buildings are alleged to be:

To one McGreer

$ 205 40

To one Elliot

883 10

James Morton & Son

392 18

Newcomb Lumber Co

942 99

E. R. Benson

54 46

Ransom & Co

956 99

Whitman et al

115 00

Total liens

$ 3550 12

There is also a claim of $ 900 liquidated damages for a failure to complete the building on May 1, 1887, the allegations being "That the said Boehme & Bennett entered upon the construction of said block of buildings and furnished the material therefor so far as the same has been completed, but the plaintiff says that said buildings have not been completely finished, nor any of them; that many portions of the work, according to the said plans and specifications, have been left undone; that the said Boehme & Bennett abandoned said work and were notified on the 15th day of August, 1887, that the said buildings were incomplete and requiring them to finish them ready for occupancy under the aforesaid contract and bond, and that the plaintiff would be compelled to finish the same and charge the expense thereof towards their contract price, of which notice the said Boehme & Bennett have taken but little notice, if any, and the buildings at this date are still incomplete and unfinished; and that the said block of buildings were not finished and ready for occupation on the 1st day of May, 1887, as by the terms of said contract provided, and such delay was not prevented by accidental fire, or by any circumstances over which the parties of the second part had or could have had no control, but that on or about the 1st day of August, 1887, the plaintiff was enabled to have the buildings occupied, in an incomplete and unfinished condition, whereby, and under the terms of said contract, the said plaintiff has suffered damages in the sum of $ 900."

The sureties in their amended answer admit the execution of the bond, but allege, first, a verbal modification of the contract. This defense, however, was abandoned on the trial, and the jury in effect were so instructed.

The third defense is "that by the terms of the contract set out in plaintiff's petition it was provided that the plaintiff should have the right to retain in his hands all moneys due the defendants Boehme & Bennett until all liens and claims for work and material were paid and discharged that upon the work performed by the said contractors Boehme & Bennett for the plaintiff a sufficient amount of money became due and owing to said contractors to have paid off and discharged all such liens and claims while he so held the money of said contractors; that if any such claims are now valid liens against the plaintiff's property the same occurred by the fault of the plaintiff in paying over the said moneys to the contractors instead of retaining the same until such liens were discharged, as in said contract provided, whereby these defendants were released from all liability on said...