Casey v. Gunn

• Citation: 29 Mo.App. 14
• Parties: M. J. CASEY, Respondent, v. T. J. GUNN et al., Appellants.
• Decision Date: 31 January 1888
• Court: Missouri Court of Appeals

29 Mo.App. 14

M. J. CASEY, Respondent, v. T. J. GUNN et al., Appellants.

Court of Appeals of Missouri, St. Louis.

January 31, 1888

APPEAL from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Affirmed.

C. P & J. D. JOHNSON, for the appellant, Ogden: A guaranty that the contractor should furnish materials, etc., at his own cost and charges is not a guaranty against lien claims for materials furnished under subcontracts with the contractor. The liability of a surety cannot be extended beyond the plain terms of his contract, nor by implication. The Singer v. Hibbs, 21 Mo.App. 578; The Home v. Traube, 75 Mo. 202, and cases cited; City v. Sickles, 52 Mo. 126; State v Boone, 42 Mo. 262. As to the particularity required in pleading upon a lien claim see: Rev. Stat., secs. 3176 and 3177; Heltzell v. Langford, 33 Mo. 396; Porter v. Tooke, 35 Mo. 107; Gault v. Soldani, 34 Mo 150; Bradish v. James, 83 Mo. 316; Heinrich v. Carondelet, 8 Mo.App. 588; Fay v. Adams, 8 Mo.App. 566. If it should be held that the petition states a cause of action, then there was an entire failure of proof as to many of the claims which it is contended go to make up the measure of damage. The voluntary payment of a claim, not constituting a lien, would not amount of a compulsory payment or entitle plaintiff to recover against the sureties. Schulenburg v. Robinson, 5 Mo.App. 562; Schulenburg v. Vrooman, 7 Mo.App. 133. A lien cannot be enforced against a building for materials, etc., furnished to the contractor, but not put into the building. Deardorff v. Everhart, 74 Mo. 37; Simmons v. Carrier, 60 Mo. 581; Fitzpatrick v. Thomas, 61 Mo. 512; Schulenburg v. Prairie, 65 Mo. 295; Schulenburg v. Hawley, 6 Mo.App. 34. The assignment of the claims in question to Hayden, as testified to by him, released the property of plaintiff from the lien of the claims, even if such liens previously existed. Griswold v. Carthage, 18 Mo.App. 53. So that, as to the claims assigned, there was no necessity for plaintiff to pay them. If the plaintiff was not compelled to pay the claims for the protection of his property (the payments having been made without the authority of this defendant) then the payments were voluntary, and plaintiff cannot recover therefor. McMahon v. Vickery, 4 Mo.App. 226; Union v. Kehler, 7 Mo.App. 158; Wolf v. Marshal, 52 Mo. 167; Eoff v. Clay, 9 Mo.App. 177; Slate v. Powell, 44 Mo. 437. On the other hand, if lien claims existed against the building at the time the first and second instalments were paid by plaintiff to Gunn, under the contract, and plaintiff at that time knew of the existence of such claims, then the trial court erred in refusing to give this appellant's second instruction refused, and the judgment is excessive, inasmuch as the contract made such payments conditional upon there being no lien claims upon the building. Taylor v. Jeter, 23 Mo. 250; Watkins v. Pierce, 10 Mo.App. 595; Brandt on Sur. & Guar., par. 370, and cases cited in note 1; par. 345, and cases cited in note 2; 1 Story Eq., par. 327, et seq.; Raysdon v. Trumbo, 52 Mo. 38; Budd v. Hoffheimer, 52 Mo. 297; Hoffman v. Parry, 23 Mo.App. 21.

AUG. REBENACK, for the appellant, Bickel: The right of a materialman to a lien depends upon whether he gave credit on the faith of the structure into which the material entered. Rand v. Grubbs, 26 Mo.App. 591. The basis for the lien given by the statutes against the property-owner is the principle of substitution, and the party substituted by operation of law could occupy no better position than he for whom he is substituted. Henry v. Rice, 18 Mo.App. 497. That sureties are favorites of the law and will not be held beyond the terms of the engagement, is well settled. Miller v. Stewart, 9 Wheat. (22 U. S.) 680; Burns v. Manf. Co., 87 Ind. 541, and cases cited; Lafayette v. James, 92 Ind. 240, and cases there cited. The principal cannot change the right of his sureties in any respect without their consent. Johnston v. May, 76 Ind. 300. The liabilities of a surety cannot be extended beyond the plain terms of his contract. Mfg. Co. v. Hibbs, 21 Mo.App. 574; Chouteau v. Iron Works, 83 Mo. 73. The question of abandonment and rescission were for the court to determine. Henry v. Bassett, 75 Mo. 95; Pratt v. Morrow, 45 Mo. 404. Very slight circumstances are sufficient to show the assent of a party thereto, when it is obviously for his interest that a contract should be terminated. Fine v. Rogers, 15 Mo. 318. One who is prevented by the other party to a contract from performing conditions of the contract, is not responsible for such failure. Baker v. Railroad, 19 Mo.App. 321. While a contract of employment is executory, the principal may rescind it, especially if the agent was not acting in good faith toward him. Gaty v. Sack, 19 Mo.App. 470. In case of violation of a contract by either party, the other party may ordinarily rescind it totally if the contract be an entirety or be incapable of apportionment, or he may rescind it partially if the contract be capable of apportionment. Hunt v. Silk, 5 East, 449; Reed v. Blanford, 2 Youngs and Jere, 278; Shields v. Davis, 1 Taunt. 65; Franklin v. Miller, 4 Adolph. and Ell. 599; Coolidge v. Brigham, 6 Metcalf 547; Baillie v. Kell, 4 Bing. (N. C.) 638; Turnpike Co. v. Commonwealth, 2 Watts 438; Connor v. Herndon, 15 Mass. 319; Havelock v. Geddes, 10 East, 564; Groundsell v. Lamb, 1 Mees. and W. 352; White v. Perley, 15 Me. 470; Bean v. Simpson, 16 Me. 49; Howard v. Miner, 20 Me. 325; Mfg. Co. v. Armstrong, 17 Me. 34. If a party be bound to pay a certain sum of money, a mere readiness to pay is insufficient. Haldane v. Johnson, 20 Eng. Law and Eq. 498. It is his duty to make a tender of payment, or actually pay the money to whom it is due. Co. Litt, sec. 340; Soward v. Palmer, 2 Moore 276; Cranley v. Hilary, 2 M. and S. 122. " The construction of a written contract is a question of law for the court." Thompson Charging the Jury, sec. 12, and authorities cited; Hudson v. Railroad, 53 Mo. 539; Hickey v. Ryan, 15 Mo. 46; Newman v. Lawless, 6 Mo. 279. When, by the terms of the contract, it is the option of the promisor which of two acts he will perform, the promisor has the right to elect which he will do. Layton v. Pearce, 1 Doug. 16; Penny v. Porter, 2 East, 2; Smith v. Sanborn, 11 Johns. 59; Small v. Quincy, 4 Greenl. 497; Chippendale v. Thurston, 4 C. & P. 98; Appleton v. Chase, 19 Me. 79; Gessley v. Railroad, 26 Mo.App. 156; McMurry v. Martin, 26 Mo.App. 437.

CHRISTIAN & WIND, for the respondent: A contract to build a house implies an obligation to pay for the work and material used in its construction. Gauss v. Hussmann, 21 Mo.App. 343. An objection is made to payment for brickwork because Schaumberg Brothers had a running account with Green, but this does not defeat a lien. Gantner v. Kemper, 58 Mo. 567. Nor does the fact that subcontractors kept no separate accounts of the material furnished, as both houses were precisely the same and were separate contracts. Hanson v. Gibson, 14 Mo.App. 33; Fitzgerald v. Thomas, 61 Mo. 499; S. C., 61 Mo. 512; Mysen v. Thomas, 3 Mo.App. 664. Nor was it necessary to follow the lumber and mill work from the yard to the premises and into the building itself. Morrison v. Hancock, 40 Mo. 561. And as to the reasonable value of the work done and materials furnished, the contract price is presumed to be reasonable. Deardorff v. Everhart, 74 Mo. 37; Hilliker v. Francisco, 65 Mo. 598. And particularly after verdict. Gibson v. Nagle, 15 Mo.App. 597. An assignment of a lien claim carries the lien with it, and does not extinguish the lien. Goff v. Papin, 34 Mo. 177, affirmed in Jones v. Hurst, 67 Mo. 572; Gibson v. Nagle, 15 Mo. 597. But this objection comes too late, and it was not urged in the trial court.

OPINION

ROMBAUER J.

The plaintiff entered into a building contract with defendants, Gunn, as principal, and Conrad Bickel and Joseph B. Ogden, as securities, by which defendant, Gunn, agreed to erect a dwelling-house for plaintiff and to furnish and pay for the materials, for the price of $3,194. The contract provided that this consideration should be paid in four instalments, eight hundred dollars, when the first-floor joists were laid; eight hundred dollars, when the roof was on, eight hundred dollars when the plastering was done, and the residue when the house was completed and delivered. " Provided, that the wages of artisans and all others employed on said building shall have been satisfied, so that there shall be no lien on said building; and if the said party of the second part (the contractor) shall fail so to satisfy all and every claim on said building, the said party of the first part may, if he deems it proper to do so, retain money enough to satisfy all claims."

The defendant, Gunn, failed to perform his contract, whereupon the plaintiff brought the present action against him and his sureties, stating in his petition the contract, and averring as a breach thereof, " that said Gunn did not pay the claims for labor done and materials necessarily furnished in the erection of said house under said contract; that persons who did labor and furnish work and materials to said house made demand on plaintiff for same and threatened to file liens against said house; that plaintiff did pay for such labor, work, and materials, to those entitled thereto, the sum of $1,216, above and in excess of said $3,194, the contract price of said house."

For the sum thus paid in excess the plaintiff asks judgment.

The two sureties answered separately. The answer of defendant Bickel, set up a cancellation of the contract by mutual consent, and a release of his principal. It further avers that the plaintiff assumed to complete the house himself; that he refused to pay to Gunn the...