Cockrill v. Davie

• Decision Date: 19 February 1894
• Citation: 35 P. 958,14 Mont. 131
• Parties: COCKRILL v. DAVIE et al.
• Court: Montana Supreme Court

35 P. 958

14 Mont. 131

COCKRILL v. DAVIE et al.

Supreme Court of Montana

February 19, 1894

Appeal from district court, Cascade county; C. H. Benton, Judge.

Action by W. M. Cockrill against E. R. Davie, John Renner, and J. W Cornelius. From a judgment against defendant Renner alone, he appeals. Modified.

A. J Shores and Thomas E. Brady, for appellant.

Leslie & Downing and P. H. Leslie, for respondent.

HARWOOD J.

It appears that plaintiff entered into a contract, evidenced by writing, with defendant Davie, whereby the latter agreed, for a certain consideration, to "provide and furnish all material, and do all labor, necessary to the erection and completion of a two-story frame dwelling house" for plaintiff, according to certain plans and specifications made part of the contract. To guaranty the fulfillment of that contract, a bond was executed by defendants Renner and Cornelius, and delivered to plaintiff, in the sum of $2,500 referring to said contract, and conditioned that "if the said Davie shall well and truly furnish said material, and construct said house, as per said contract, and in all things fully do and perform his part of said contract, constructing said house within the time specified, according to said plans, and changes in the designs as said Cockrill may demand of him, then the above obligation is to be void; otherwise, to remain in full force and virtue." The building appears to have been constructed by Davie, and plaintiff paid him a considerable portion of the contract price therefor; but Davie failed to pay for certain labor and materials which he procured and used in the construction thereof, by reason of which default certain liens were applied and enforced against said property, the which Cockrill was obliged to pay in order to save his property from sale under judgment of foreclosure to satisfy such lines. Whereupon Cockrill undertook, by this action, to recover from defendants the amount he was thus compelled to pay by reason of Davie's failure to carry out said contract to furnish the material and labor for the construction of said house. Defendants Renner and Cornelius appeared and, their demurrer to the complaint having been overruled, answered, putting in issue material allegations of the complaint and alleging as a defense that they signed the bond upon the express understanding and arrangement between all the parties concerned that it should not be delivered or have effect without the signature of the defendant Davie. The trial resulted in judgment against Renner alone for $1,011.54, and he prosecutes this appeal therefrom, as well as from an order overruling his motion for new trial.

Appellant insists that the bond in question is wholly void because Davie, named therein as principal, did not sign it along with the sureties. But, after much consideration of this subject and the authorities, we cannot sustain that view. The same obligation was fixed upon Davie by another contract, and Renner and Cornelius undertook and promised, in writing, to answer for the default of Davie in respect to his engagements by virtue of that contract, which the sureties described in their bond. This bond was a collateral ingraftment upon that contract, whereby those sureties took upon themselves the burden of answering for any default which Davie might make in respect to his obligation thereunder. As to such obligations, where the liability of the principal is fixed by contract or by operation of law the sureties who guaranty the fulfillment of that obligation cannot avoid their obligation because the principal did not sign the bond with them. There is no reason or principle of law, or substantial right involved, which should lead to such a ruling; and the same, we think, without doubt, would be against the contemplation, understanding, and purpose of the contracting parties, because the sureties in such a case neither gain nor lose any substantial right by reason of the principal signing or omitting to sign such undertaking, which he procured on his behalf. On the other hand, under a different species of bond, where the principal was bound only by virtue of his executing the bond, a different ruling would be applicable on such a defense. We think sufficient has been said on this point in Wibaux v. Live-Stock Co., 9 Mont. 154, 22 P. 492; Hoskins v. White, 13 Mont. --, 32 P. 163; Woodman v. Calkins, 13 Mont. --, 34 P. 187.

Appellant further contends that, because there was no provision in the building contract specially requiring Davie to pay for the labor and...