Burnes Estate v. Fidelity & Deposit Company
| Decision Date | 03 November 1902 |
| Citation | 70 S.W. 518,96 Mo.App. 467 |
| Parties | BURNES ESTATE, Appellant, v. FIDELITY & DEPOSIT COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. W. K. James, Judge.
AFFIRMED.
Judgment affirmed.
Brown & Dolman for appellant.
(1) Under the contract, the contractors were required to do anything "implied or necessarily connected with the proper completion of the work," including excavating "to firm and solid ground," and no order of the architect, written or otherwise, was required for this. Early v. O'Brien, 64 N.Y.S. 848; Woodruff v Railroad, 108 N.Y. 39. (2) The contract must be so construed as to give effect to the provision that the contractors should excavate to firm and solid ground. Calloway v. Henderson, 130 Mo. 77, 86; Burch v Hotel, 7 Mo.App. 583. (3) The provision of the contract requiring the written order of the architects to authorize "alterations" in the work, was intended for the protection of the owner against doubtful claims. White v Railroad, 50 Cal. 417. (4) For this purpose there is an express declaration in the contract that the architects are without authority to give oral directions for alterations, and if the contractor should make them upon such directions he would be committing a breach of the contract for which the bondsmen would be liable if damage should result. Lumber Co. v. Gates, 89 Mo.App. 201; Starkweather v. Goodman, 48 Conn. 101; Woodruff v. Railroad, 108 N.Y. 39; Abbott v. Gatch, 13 Md. 314; White v. Railroad, supra; Adlard v. Muldoon, 45 Ill. 196; Gray v. La Societe Francaise, 131 Cal. 566 (63 P. 848).
James C. Davis for respondent.
(1) When a building contract provides against any material variations from its terms, unless the difference in the contract price resulting from the variations be first agreed upon by the parties in writing, and a material change in the work is agreed upon between the parties but not in writing, the surety will be discharged from further obligation unless he has consented thereto. Beers v. Wolf, 116 Mo. 179; Killoren v. Meeham, 55 Mo.App. 427; Elbridge v. Fuhr, 59 Mo.App. 44; Kane v. Thuener, 62 Mo.App. 69. (2) The contract provided that no alterations should be made in the work shown or described by the drawings and specifications except upon a written order of the architects. The order by the architects for the alterations mentioned was verbal and not in writing as provided for by the contract. Hence, respondent is released from any liability on its bond. 59 Mo.App. 44. (3) When changes are made from the plans and specifications of a building contract, and such changes are made without the consent of the surety, this will discharge the surety from liability on the bond. In this case it appears by the evidence of the appellant that no consent by respondent to the changes named was had. Nofsinger v. Hartnett, 84 Mo. 549; Bricker v. Stone, 47 Mo.App. 530; Prior v. Kiso. 81 Mo. 241; Warden v. Ryan, 37 Mo.App. 470.
--This is a suit by appellant against defendants, Rusco & Chaffee, contractors with plaintiff for the erection of a three story brick building in St. Joseph, Missouri, and the Fidelity and Deposit Company, their surety on a bond for the performance of the contract. Judgment was rendered against the defendants, Rusco & Chaffee, for the sum of $ 4,458.77. The court on the hearing of the case instructed for a finding for the Fidelity and Deposit Company, whereupon the plaintiff took a nonsuit against said company, and it is the judgment of the court in refusing to set aside same, from which plaintiff appeals.
The defendants, Rusco & Chaffee, by their contract in writing, dated the thirty-first day of May, 1898, undertook and agreed under the direction of Messrs. Felt & Carr, architects, to erect a three-story brick building for plaintiff, and to provide and pay for all labor and materials necessary for the construction and completion thereof, as shown by certain specifications and drawings, and to fully complete said work on or before the first day of November, 1898, in consideration for which plaintiff was to pay them the sum of $ 27,454, to be paid as the progress of said work should justify, etc. It was also agreed between the parties that written alterations might be made in the work described in said drawings and specifications, upon the written order of the architects, and that when so made the value of the work so added or omitted should be added to, or deducted from the contract price, and that the work of driving piling, and increasing footings, in addition to the amount specified in said contract, should be paid for extra.
A large number of liens were enforced against the building, which plaintiff was compelled to pay. There is no objection urged against the judgment against the contractors, so we may assume the amount thereof to be the true measure of plaintiff's damages, growing out of the failure of said contractors to comply with the terms of their contract, for which the defendant surety would be liable unless it has been released by alterations, made in the work as shown by the drawings and specifications, without the written order of the architects. This is the sole question in the case. There is no dispute but what the excavations and footings for the foundation of the building were materially increased, at an additional cost of $ 865.77, without the written order of the architects. It is contended that said change so made without the written order of the architects released the...
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