City of St. Louis v. McCully Const. Co.

• Citation: 184 S.W. 939
• Decision Date: 04 April 1916
• Docket Number: No. 14257.,14257.
• Parties: CITY OF ST. LOUIS, to Use of GILSONITE CONST. CO., v. McCULLY CONST. CO. et al.
• Court: Court of Appeal of Missouri (US)

184 S.W. 939

CITY OF ST. LOUIS, to Use of GILSONITE CONST. CO., v. McCULLY CONST. CO. et al.

No. 14257.

St. Louis Court of Appeals. Missouri.

April 4, 1916.

Appeal from St. Louis Circuit Court; Thos. C. Hennings, Judge.

Action by the City of St. Louis, a municipal corporation, to the use and for the benefit of the Gilsonite Construction Company, against the McCully Construction Company and the Bankers' Surety Company. Report of referee confirmed, judgment for plaintiff, motion for new trial overruled, and defendants appeal. Affirmed.

Jeffries & Corum, of St. Louis, for appellant Bankers' Surety Co. S. C. Taylor, of St. Louis, for appellant McCully Const. Co. Jones, Hocker, Hawes & Angert, Vincent L. Boisaubin, and Goodbar & English, all of St. Louis, for respondent.

REYNOLDS, P. J.

The city of St. Louis, intending to reconstruct and fireproof the interior of the center portion of the main building of the City Poorhouse, entered into a contract with the McCully Construction Company to do the work according to plans and specifications for a total price of $32,998, the McCully Construction Company entering into a bond in the penal sum of $11,999.50, conditioned that it would faithfully and properly perform the contract mentioned according to all its terms and upon its completion pay to the proper parties all amounts due for material and labor used and employed in the performance of the contract. The Bankers' Surety Company joined in the bond as surety for the McCully Construction Company.

It is averred that the Gilsonite Construction Company, hereafter, for brevity, called plaintiff or respondent, relying upon the provisions of this contract and bond as security to pay materialmen, such as plaintiff avers itself to have been, for materials used and employed in the performance of the contract, did, at the special instance and request and under contract with the McCully Construction Company, furnish to that company certain materials, tools and labor used by the McCully Construction Company in the performance of the contract and in the reconstruction and fireproofing of the interior of the center portion of the main building of the Poorhouse at the agreed price and reasonable value of $6,888.86, on which account it is averred plaintiff has received $5,328.33. Averring that the contract had long since been completed and that the balance, to wit, $1,560.53 is long since due plaintiff and had often been demanded and requested of the McCully Construction Company but payment not made, plaintiff charges a breach for the obligation of the bond, asks judgment for the penalty thereof and execution in its favor, as provided by law in such cases, for the sum of $1,560.53.

Attached to the petition is an itemized statement of account of material furnished, labor done, and the prices charged.

The McCully Construction Company answered by general denial. The Bankers' Surety Company, by separate answer, after admitting that it is a corporation organized under the laws of Ohio but authorized under the laws of this state to execute contracts of suretyship in this state, denies each and every other allegation in the petition. Further answering, it states that as surety for the McCully Construction Company it entered into an obligation in the penal sum of $11,999.50, conditioned that the McCully Construction Company would faithfully and properly perform a contract entered into between it and the City of St. Louis. "But defendant states that neither the terms, provisions or effect of said contract, nor the terms, provisions or effect of said bond are correctly set forth in plaintiff's petition. For further answer defendant states that the plaintiff and the said McCully Construction Company from time to time and pursuant to agreement made between them, altered, changed and added to the plans and specifications of the contract on which this defendant was bound as surety, and by agreement altered the terms of said contract, and that such alterations, changes and additions in said contract and specifications were made without the knowledge or consent of this defendant," further charging that such alterations, deviations, changes and additions so made without its consent were in the amount of $522.44, itemizing them.

By consent of the parties James E. King, Esq., was appointed referee to hear and determine all the issues therein involved.

At the conclusion of the hearing before him the referee made his report, finding for the plaintiff, and recommending that judgment be entered adjudging a forfeiture of the bond, the judgment to be satisfied on the payment of $1,560.53, with six per cent. interest. Over exceptions of the defendants the report of the referee was affirmed and judgment rendered accordingly, the judgment also awarding interest from May 25th, 1910. Filing their motion for a new trial and excepting to the action of the court in overruling that, as they had also excepted to the action of the court in overruling exceptions to the report of the referee, defendants have duly appealed.

Appellants introduced no testimony. That introduced by respondent is before us and is rather voluminous.

We have read the record of this testimony, as well as the proceedings at the hearing before the referee, with great care and find no occasion to overturn his action on the admission and exclusion of testimony, or his conclusion of law in the case.

It is urged by learned counsel for appellants that the contract was not properly proved and introduced in evidence. The plaintiff, before the amended answer of the Surety Company was filed, did file a copy of the bond and contract, duly certified by the City Register, and while these do not appear to have been formally introduced, it is clear that they were before the referee, quoted from by counsel as if in evidence, and their execution in no way challenged under oath; in fact, as will be seen, the Surety Company, by its answer admitted the execution of the bond but pleaded that it had been incorrectly recited in the petition.

The only extra work outside of that covered by the original contract and to which the averment in the amended answer of the Bankers' Surety Company, that there had been a change and alteration of the plans and additional work, can possibly relate, is extra work done by plaintiff in connection with some window bars in one of the rooms, and repairing cement at the foot of a stairway, that originally laid having been torn up in putting up the iron work of the stairway. The amount of these items is $22.86. The work was done at the request of the McCully Construction Company. The referee found that there was no evidence as to alleged alterations in the plans and specifications, designating these things for which this $22.86 was charged as "patchwork." While this was work outside the contract of plaintiff, it was not outside that of the McCully Construction Company, and was a proper charge by plaintiff against them.

Under the claim that there had been an alteration of the contract entered into between the McCully Company and the City, counsel for appellants argue that the McCully Company had sublet part of the work to respondent, in violation of this clause of the contract, namely:

"The said party of the first part (McCully Construction Company) hereby further agrees that it will give its personal attention to the fulfillment of this contract, and that it will not sublet the aforesaid work, but will keep the same under its control; and it will not assign by power of attorney, or otherwise, any portion of the said work."

The City was the other party to this contract.

We might dispose of that by saying that it has not been pleaded and that the averment in the amended...