Closson v. Billman

• Decision Date: 07 January 1904
• Docket Number: 20,258
• Parties: Closson v. Billman et al
• Court: Indiana Supreme Court

69 N.E. 449

161 Ind. 610

Closson v. Billman et al

No. 20,258

Supreme Court of Indiana

January 7, 1904

From Cass Circuit Court; D. H. Chase, Judge.

Suit by Edgar D. Closson against Marie E. Billman and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Affirmed.

S. T McConnell, A. G. Jenkines, B. C. Jenkines and C. H. Stuart for appellant.

M. B Lairy and M. F. Mahoney, for appellees.

OPINION

Gillett, C. J.

Appellant, by his complaint, sought to establish and foreclose a material man's lien against a lot owned by appellee Marie E. Billman for lumber furnished by him and used in the construction of a dwelling-house on said lot. It appears from said complaint that appellee Charles D. Billman, the husband of his co-appellee, with the knowledge and consent of his said wife, entered into a contract, in his own name, with one Levi A. Worley, to construct and complete said building, and that as her agent he conducted and superintended the construction of said house. It is further shown by the allegations of said pleading that said Worley purchased lumber of appellant to the amount of $ 863.35, and that such lumber was used in the carrying out of said contract. It is unnecessary to set out the remaining allegations of said complaint. Appellees answered in five paragraphs, but all of said paragraphs were withdrawn except the fifth. Appellant demurred to said paragraph. His demurrer was overruled, and he excepted, and, as he elected to abide his exception, final judgment was rendered against him. By a proper assignment of error, appellant challenges the sufficiency of said paragraph.

It is charged in said paragraph of answer that defendant Charles D. Billman, acting for his wife, entered into a written contract with said Worley, whereby the latter agreed to furnish and pay for certain materials to be used in the erection of said dwelling, and to construct and complete the same; that as a part of said transaction said Worley, as principal, and plaintiff, as surety, executed and delivered to said defendant Charles D. Billman a bond in the sum of $ 1,500, for the use of his codefendant, conditioned to build, construct, and complete the residence mentioned in said contract; that the material furnished by plaintiff was material which it was the duty of said Worley under said contract to furnish in the construction of said building, and that said Worley, instead of paying for said material, had permitted the plaintiff to file a lien against said real estate, and thereby violated the terms of said contract, and that, by reason of the breach of said contract, plaintiff, as surety, had become liable on said bond for whatever amount was unpaid on account of the purchase price of said material. Copies of the contract and bond are made exhibits to said answer. The contract, which is dated July 19, 1900, provides that in consideration $ 1,185 said Worley is to furnish for said Charles D. Billman all lumber, doors, frames, sash, and all other materials for the erection of said house, except for the foundation thereof and certain plate and art glass, and that, upon the completion of the foundation, said Worley is to build and construct said residence in accordance with certain plans and specifications. It is further provided in said contract that said Worley is to furnish to said Charles D. Billman a good and sufficient bond, with approved security, in the sum of $ 1,500, for the faithful performance of his (said Worley's) obligation in said contract in the construction and completion of said residence. It is also stipulated in said writing that the contract price is to be paid by said Billman as follows: Forty-four dollars by furnishing a monument, $ 250 on the presentation of receipted bills for materials furnished and delivered upon said lot, and the balance within thirty days after the completion of said residence. The bond, which is signed by said Worley and appellant, recites that on the 19th day of July, 1900, said Billman and Worley entered into a contract that the latter, in consideration of $ 1,185, would construct and complete a residence on the lot above mentioned, in accordance with the plans and specifications described in said contract, within a certain time. The bond is conditioned as follows: "Now, if the said Worley shall build, construct, and complete the said residence according to his contract with said C. D. Billman, and according to the plans and specifications herein referred to, and within the limit of time above provided, then this bond shall be null and void, otherwise in full force and effect."

On behalf of appellant it is contended that no breach of the bond is shown, as it is not alleged that said Worley did not construct and complete said house in accordance with said plans and specifications. Although sureties and guarantors are favorites of the law, and are not to be held beyond the limits of their engagements, yet the meaning of language must be the same in construing their contracts as if they were executed by the principals alone. Mr. Brandt, in his work on suretyship and guaranty (2d ed.), § 94, says: "The rules for construing the contract of a surety or a guarantor...