Chapman v. Eneberg

• Decision Date: 02 June 1902
• Citation: 68 S.W. 974,95 Mo.App. 127
• Parties: EGBERT H. CHAPMAN, Respondent, v. JOHN F. ENEBERG et al., Appellants
• Court: Kansas Court of Appeals

68 S.W. 974

95 Mo.App. 127

EGBERT H. CHAPMAN, Respondent, v. JOHN F. ENEBERG et al., Appellants

Court of Appeals of Missouri, Kansas City

June 2, 1902

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

REVERSED.

Judgment reversed.

J. T Clayton for appellants.

(1) The architect made his contract with and drew his pay from the owner of the building and acted for him in all matters pertaining to the contract. Northern Light Lodge Co. v Kennedy, 73 N.W. 524; Lewis v. Slack, 27 Mo.App. 131. (2) It is no breach of the bond to charge that parties threatened to file liens; hence, the court can readily see that no cause of action against sureties is stated in the petition. (3) Plaintiff's testimony shows that the changes were not agreed to in writing and referee found as a fact "that extra work was not agreed to in writing before the work was done." Eldridge v Fuhr, 59 Mo.App. 44; Killoren v. Meehan, 55 Mo.App. 427; Kane v. Thuener, 62 Mo.App. 69; Timmerberg v. Schramm, 71 Mo.App. 87; Taylor v. Jeter, 23 Mo. 244; Evans v. Graden, 125 Mo. 72; Bragg v. Shain, 49 Cal. 131; Ryan v. Morton, 5 Tex. 258; 2 Brandt on Suretyship, sec. 397; Fullerton Lumber Co. v. Gates, 89 Mo.App. 205.

Ashley, Gilbert & Dunn for respondent.

(1) The petition states a cause of action against the sureties as well as the contractor. Krey v. Hussman, 21 Mo.App. 343; Casey v. Gunn, 29 Mo.App. 24; Ham v. Hill, 29 Mo. 275; State to use v. Tiedemann, 69 Mo. 515; Oberbeck v. Mayer, 59 Mo.App. 289; Bank v. Leyser, 116 Mo. 74. (2) Appellants' claim that sureties should have been released because referee found that $ 1,000 was not held back by owner until final certificate, is wholly untenable. Hornblower v. Crandall, 78 Mo. 581; s. c., 7 Mo.App. 220; Cahill, Swift & Co. v. McCornish, 74 Mo.App. 609, and cases there cited; State ex rel. v. Elliott, 82 Mo.App. 458, 469; Stone v. Wolfskill Bros., 59 Mo.App. 441. (3) Should the sureties have been held released by reason of an alleged departure from the tenth clause of the contract requiring extras to have been understood and agreed upon beforehand? Cahill, Swift & Co. v. McCornish, 74 Mo.App. 609, and cases there cited; Stone v. Wolfskill Bros., 59 Mo.App. 441; Beers v. Wolf, 116 Mo. 179; Killoren v. Meehan, 55 Mo.App. 427; Eldridge v. Fuhr, 59 Mo.App. 44; Timmerberg v. Schramm, 71 Mo.App. 87. (4) Should the sureties have been held released because there was a departure from the requirements of clause eleven of the contract, the referee holding that there was such a departure and that the sureties should thereby be released and the trial judge holding that there was no departure whereby sureties were released? Williams v. Railroad, 153 Mo. 487; Wentzville Tobacco Co. v. Walker, 123 Mo. 662; Utley v. Hill, 155 Mo. 232; Smith v. Baer, 66 S.W. 166; Chapman v. Railroad, 114 Mo. 542; Messner v. Lancaster County, 23 Pa. St. 291; Arnold v. Bournique, 20 L. R. A. 493; Dinsmore v. Livingston County, 60 Mo. 241; Williams v. Railroad, 112 Mo. 463; Taylor v. Jeter, 23 Mo. 244; Evans v. Graden, 125 Mo. 72; Bragg v. Shain, 49 Cal. 131; Ryan v. Morton, 65 Texas 258.

OPINION

ELLISON, J.

--Plaintiff and one Chambers contracted in writing, that the latter should build the former a house for the sum of $ 6,813.20. The latter gave a bond with defendants as sureties, conditioned that he would faithfully perform his contract. Plaintiff brought this action on the bond, charging a breach thereof. The case was referred to a referee, who found that defendants were discharged from their obligations as sureties. The circuit court sustained plaintiff's exceptions to the report and rendered judgment for the plaintiff.

It was provided in the contract that plaintiff would pay Chambers $ 6,813.20 for building the house, $ 5,813.20 in payments as the work progressed, upon the architect's certificates. Final payment of $ 1,000 when the work is completed and accepted by said architect. Each of said payments is to be due on the proper presentation of a certificate signed by the architect.

It was further provided as follows: "Sixth. Should the said second party, at any time during the progress of the work, make any alteration in the said drawings and specifications, the same shall in no way affect or make void this contract, but will be added to or deducted from the amount of the contract price, as the case may be, by a fair and reasonable valuation.

"Tenth. No work of any description is to be considered as extra work unless the same, shall have been understood and agreed upon in writing before such work is commenced. And the said first party is to use due diligence in executing all work to be done in accordance with the said contract.

"Eleventh. The said first party agrees to hold said second party harmless from any mechanic's liens, which might be filed by any of the employees of said first party for alleged non-payment of services for work or materials furnished under said contract; and the amount represented by certificates as issued previous to the final certificate shall not be greater than eighty-five per cent of the value of the work done, and in the building, which has been paid for by the said first party; receipts showing this, are to be given to the said architect at each request for a certificate."

1. Defendants contend that there is a failure to allege a breach of the contract, in that the petition charges "that plaintiff was compelled to pay $ 588.77 to prevent the filing of mechanic's liens which might have been filed and were threatened to be filed by men and employees of Chambers for non-payment for materials furnished and services performed in and upon said building under said agreement;" whereas, the contract was that Chambers would hold plaintiff "harmless from any mechanic's liens, which might be filed by any of the employees" of Chambers.

The particular point made is that plaintiff should have waited until the liens were filed, and that he was only to be protected from liens actually filed. We regard that construction as unreasonable. If the matters discharged by plaintiff were lienable and were about to be filed against his property, he had a right to pay them and is undoubtedly protected by the true intent and meaning of the contract. The words of the contract, "which might be filed," mean claims that were lienable, that is, claims which were of such character as they might legally be filed and become a claim against plaintiff's property. The case of Morley v. Carlson, 27 Mo.App. 5, cited by defendants, was between parties not like these, and was based on facts not found in this case.

2. The finding of the referee aforesaid was based on what he deemed to be a violation of the eleventh clause of the contract just set out, in that plaintiff has paid out the full amount of the price of the building and had not reserved twenty-five per cent thereof as mentioned in said clause.

The theory of the referee was that such fund was to be reserved as a guaranty or assurance that Chambers would comply with his contract, and that it operated as a protection pro tanto to the defendants as sureties. Stated without qualification and control by other portions of this particular contract, the referee was right and the defendants properly discharged. Evans v. Graden, 125 Mo. 72, 28 S.W. 439; Taylor v. Jeter, 23 Mo. 244. But the facts are that plaintiff only paid out the moneys complained of in this respect, on the certificate of the architect. And that he was bound to do by the terms of the contract itself; for by reference to the concluding part of the second clause, aforesaid, it will be seen that such are its express terms. The architect was the party agreed upon to determine when the payments were to be made; that is to say, he was to determine when the status of the work demanded a payment and his certificate issued in good faith, bound all parties. Chapman v. Railway, 114 Mo. 542. It must necessarily be the law that a surety for the performance of a contract can not be...